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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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If you read that FAST letter, you see one flaw that may queer the deal. It says you must qualify for SMC "L" to be eligible for SMC "T" which is basically R2 with a new name. You list your disabilities but fail to mention loss of or loss of use of an extremity.

General rating and development rules apply to claims for SMC (T). In addition, before considering entitlement to SMC at the (T) rate, Rating Veterans Service Representatives(RVSRs) and Decision Review Officers (DROs) must establish entitlement to A&A benefits at the (L) rate. Procedures governing award of SMC (L) for A&A are outlined in the Adjudication Procedures Manual M21-1MR Part IV, Subpart ii, Chapter 2, Topic H, Block 44.

§ 3.350

(b) Ratings under 38 U.S.C. 1114(l). The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance.
(1) Extremities. The criteria for loss and loss of use of an extremity contained in paragraph (a)(2) of this section are applicable.
(2) Eyes, bilateral. 5/200 visual acuity or less bilaterally qualifies for entitlement under 38 U.S.C. 1114(l). However, evaluation of 5/200 based on acuity in excess of that degree but less than 10/200 (§ 4.83 of this chapter), does not qualify. Concentric contraction of the field of vision beyond 5 degrees in both eyes is the equivalent of 5/200 visual acuity.
(3) Need for aid and attendance. The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in §3.352(a).
(4) Permanently bedridden. The criteria for rating are contained in § 3.352(a). Where possible, determinations should be on the basis of permanently bedridden rather than for need of aid and attendance (except where 38 U.S.C. 1114® is involved) to avoid reduction during hospitalization where aid and attendance is provided in kind.
Here is the definition under (a)(2) for hand foot loss:
(2) Foot and hand.
(i) Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example:
(a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 31/2 inches or more, will constitute loss of use of the hand or foot involved.
(b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot.
My guys have run into this at the Seattle RO. Raters there use their bellies for a porthole which tells us where their head is located:
It is not a formal requirement that the veteran be rated 100% for his or her service-connected TBI. The statute and regulation relating to regular A&A (SMC(l)) do not mention a 100% schedular requirement . The VA Adjudication Procedures Manual Rewrite (M21-1MR) states:

A single disability rated 100 percent under a schedular evaluation is generally a prerequisite to a determination of need for regular A&A. Any lesser disability would be incompatible with the requirements of 38 C.F.R. § 3.352(a).
VA is big on promising us all manner of largesse. When it comes time to cut the check, we find the Thursday rule in small print that says it only applies if you were born on a Thursday and can prove it. SMC T is being rationed out very sparsely. So far, it has been rough for the ones I helped. They are missing one of the ingredients or don't make the 100% schedular test. All three I did are on appeal to DC. One was a DRO review and he basically reiterated the "Sorry. You have all your hands and feet. Missed it by that much."
You also mention needing the A&A about two days a week. VA will eviscerate you on that alone if you do not require it on a daily basis as described in § 3.352(b)(5):
(5) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial.
Merry Christmas
Edited by asknod
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Here is the actual SMC T regulation, as it amended the past 1114 criteria:

"(t) Subject to section 5503 © of this title, if any veteran, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under subsection ®(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care, the veteran shall be paid, in addition to any other compensation under this section, a monthly aid and attendance allowance equal to the rate described in subsection ®(2), which for purposes of section 1134 of this title shall be considered as additional compensation payable for disability. An allowance authorized under this subsection shall be paid in lieu of any allowance authorized by subsection ®(1). "


In the 2014 edition of the VBM by NVLSP, the lawyers make this point:

It would help them to obtain an IMO that states, "on addition to Aid and Attemndance the veteran would require institutional care ,without special assistance."

Page 390, Chap, VBM 2014.

The IMO doc would have to have your med recs and add a full medical rationale as to the specific way you fit into that criteria.

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Keep your eyes peeled at the CAVC. These IED adjudications get batted back and forth on remands because they have other, secondaries that now have to be considered under Moody.I think that slows them down to about a decade from RO to CAVC but eventually one is going to hit a jackass DRO who doesn't understand what it feels like to have an IED go off under under or near you. I personally can't imagine but it's bound to put a dent in you and chip some paint off. A Mk 82 500lber will part your hair smartly and slow a jeep down 4 mph even a 1/4 mile away. These guys deserve to get a pass on the check ride. Hopefully, they will go to panel rather than SJM and we'll all benefit from it.

And if y'all are in town Jan. 2, come on down to Indiana Ave. and say hi. I'll be there filing the Writ from hell.

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