A&a - Requirements

[JaxVet]

We recently filed for A&A for my husband because he needs help on a daily basis in the following areas - getting in and out of bed and chairs, getting to and from the bathroom, getting dressed, etc. He also has a lot of instability in his legs and back and has fallen on several occasions. We had the proper forms completed by his primary care doctor and the C&P examiner said he needed the A&A. We received the decision in the mail this week and here's what they said.

Entitlement to special monthly compensation based on aid and attendance/housebound is denied.

Your most recent rating decision dated June 24, 2009, does not show that you have one service connected condition rated at 100 percent; or, anatomical loss or loss of use of both feet; or, anatomical loss or loss of use of one hand and one foot; or, bilateral visual acuity of 5/200 or less.

We received your VA Form 21-526, Application for Compensation and / or Pension, on June 16, 2010 for your claim for special monthly compensation based on Aid & Attendance.

A letter dated June 21, 2010, was sent to you advising you of the Veteran's Claims Assistance Act of 2000 (VCAA), and informing you of what evidence is required to complete processing of the claim. This letter also furnished you information regarding Disability Ratings, factors affecting the evaluation, and how VA determines effective date.

Treatment reports from the Gainesville VA Medical Center Healthcare System, dated from July 8, 2010, noted that you informed the VAMC that you are requesting the Aid and Attendance benefit.

Examination results from the Gainesville VA Medical Center Healthcare System, dated July 27, 2010, noted that you are in need of the Aid & Attendance benefit due to your service connected and non-service connected conditions. The examiner noted that you are not permanently bed ridden, you have a poor memory (forgetting age), and you have no capacity to protect yourself from falls or harm. The examiner also noted that you need daily supervision.

The VA examiner noted that you need Aid & Attendance due to your service connected bilateral condition, and your lumbar condition. However, you do not have one service connected condition rated at 100 percent; or, anatomical loss or loss of use of both feet; or, anatomical loss or loss of use of one hand and one foot; or, bilateral visual acuity of 5/200 or less.

They also included the requirements from the CFR regarding A&A and housebound compensation.

We are not applying for A&A for loss or loss of use of limbs. My question is this, is there a requirement in the CFR that you must have a single condition rated at 100% in order to be awarded A&A? I ask because as I read the decision, that is the only reason that the A&A was denied.

Thanks for any help!

[Berta]

The requirement is 100 % SC to be considered for SMC (including A & A) however- the 2010 edition of the VBM (NVLSP makes the point that

if a recent exam shows a disability (rated less than 100%) is so severe as to "demonstrate" a need for A & A ,the claim should be submitted to the VA Central Office for "an advisory opinion" as to whether A & A should be granted.

Did the VA submit the claim for A VACO advisory opinion? It appears with what you posted-that they didnt.

If not I think the problem lies here:

"Examination results from the Gainesville VA Medical Center Healthcare System, dated July 27, 2010, noted that you are in need of the Aid & Attendance benefit due to your service connected and non-service connected conditions"

An A & A award is to be based solely on SC disabilities.

Does your husband receive SSA disability benefits Solely for his SC disabilities?

Has he applied for a higher rating of his SC disabilities?

Does he have a Vet rep helping with the claim?

"Your most recent rating decision dated June 24, 2009, does not show that you have one service connected condition rated at 100 percent; or, anatomical loss or loss of use of both feet; or, anatomical loss or loss of use of one hand and one foot; or, bilateral visual acuity of 5/200 or less." did you appeal the rating in time?

"We received your VA Form 21-526, Application for Compensation and / or Pension, on June 16, 2010 for your claim for special monthly compensation based on Aid & Attendance. "

Did this suggest it was for a higher SC rating?

This is the initial VA claim form-=== when asking for an increase or other benefit it is best to use 21-4138.

The VA did not appear to consider him for a higher rating because he did not request a higher SC rating-only the A & A.

I feel he should apply for TDIU but I also think he will need a strong independent medical opinion that supports that his SC disabilities as solely would warrant TDIU and even perhaps A & A after they grant the TDIU.

The Independent Medical Opinion (IMO) Format is in our IMO forum.

TDIU info is in our TDIU forum.

Can you tell us how he is rated and what for as to his SC disabilities?

Are his SC disabilities aggravating his NSC disabilities?

Is there any link at all between his SC and his NSC disabilities? Or any possibility of having his NSC disabilities linked to his service?

Edited September 27, 2010 by Berta

[john999]

This recent decision seems to be at odds with Bradley V Peake 2008. The VA is sticking to the "one disability rated at 100% plus 60%."

[JaxVet]

We put in a request for a rate increase for his original SC condition at the same time as the request for A&A. We also requested his Depression be added as SC secondary to his knee condition. The depression was rated at 50% for an adjustment disorder. As of his last neuro visit, all of his mental issues are a result of his (now SC) depression. So that will make one difference as at the time of the C&P (7/27/10) the depression was still non SC.

Also, all of his disabilities are a result of his original service connected injury - knees. His lower back was injured due to the increased strain and altered gait. The depression is a result of the chronic pain.

Currently he is rated as follows (Note - he has two ratings on each knee):

Adjustment disorder - 50%

Deg Arthritis Lower back - 20%

Deg Arthritis Right Knee - 10%

Deg Arthritis Left Knee - 10%

Right ankle strain - 10%

Right knee - 20%

Left knee - 20%

[Pete53]

Does your husband work? If not you should ask VA for TDIU and than qualified for SMC S award. Good Luck

[JaxVet]

Does your husband work? If not you should ask VA for TDIU and than qualified for SMC S award. Good Luck

Pete53,

No, my husband has not worked since November, 2006. He is currently disabled per the Railroad and rated at Permanent and Total via IU with the VA.