Awaiting BVA Remand for R-2

[Dolphin25]

In January 2015 I was granted a SAH housing grant and my higher level of AA was remanded back to the RO for more documentation b/c they stated Veteran may be entitled to a higher level if they get information from a company I hired to come in a help take care of me but unfortunately I could not keep them as the cost was way too much so instead I rely on less expensive means, family and a nurse I hired on a 24hr care as needed basis.  My question is since I was granted the housing grant and from what I can read, the requirements for a higher level of AA, R-2 are the same as it is for the housing grant so why would they grant me a housing grant and not a higher level of AA??  I am at the M rate now.

[FormerMember]

<<<<  b/c they stated Veteran may be entitled to a higher level if they get information from a company I hired to come in a help take care of me >>>>>

Never sit around and wait for VA to "get" anything from an outside source. More guys have lost with that mindset than I can count. Get it yourself. VA has to pay them for copies and they will refuse to. You can get them free via HIPPA. 

Criteria for a housing grant do not carry into the ratings field. I've seen that argument fall flat like a souffle. The requirements for a specific SMC like M are stated in 38 CFR 3.350. If, and only if, you qualify with two of any of the criteria for SMCs L, M, N or O/P, and IF one of them is Aid and Attendance, you can march smartly into R1. If you require far more care, you get R2. The criteria are all laid out in 3.352(a). Specially Adapted Housing grants are not ratings criteria, per se, like Part 3 and Part 4 of the ratings manuals. 

[Dolphin25]

Ok let's see, I was granted Aid and Attendance at the L rate back in 2003, and then after I appealed for a higher level of Aid and Attendance I was granted an L 1/2 rate but on CUE they raised it to the M rate in 2012 because I had a 100% rate and a 60% rate.

"Entitled to SMC-P(M) on account of entitlement to the statutory rate payable under 38 USC 1114(l) with an additional disability or conbination of disabilities, bladder incontinence, degenerative joint disease, lumbar spine, left lower extremity radiculopathy, left upper extremity radiculopathy, diabetes mellitus, degenerative joint disease of cervical spine due to back injury, hepatitis C, right upper extremity radiculopathy, degenerative joint disease, thorzcic spine, and radiculopathy with diabetic peripheral neuropathy, right lower extremity independently ratable at 50 percent or more from October 29, 2010."

Since 2010 I have been diagnosed with loss of use of both legs and my left arm and my appeal is back at the RO and has been since January 2015.  I have had two doctors state that if I did not receive a higher level of Aid and Attendance then I should be in an institution or nursing home care.  Right now I am paying a nurse to come in or live in if she wants to in order to care for me plus I have my wife, kids and brother giving support also but their time is limited.  It cost a lot of money to have her come in daily, more than I can really afford but I have to eat and use the bathroom.  They never rated me for loss of bowel control even though I have that and have it bad and I don't know if it is too late to get that in the record or not.  I have been granted SAH and they bought me a Van, used and I know you say it doesn't matter all I am saying is they recognized the fact I don't get around too well.  Is there anything else I can do to give support to my claim now or just let them go ahead and rule on it???

 

[Dolphin25]

Can I please get a response to my post??  I realize everyone is very busy but I am on a deadline and need to get this in the mail.  Thank you for your help thus far

and please take care...

Dolphin25

[broncovet]

This forum is manned exclusively by volunteers, who donate their time to help others.  You have already received a response by one of the very best, Alex.  I have nothing to add except this.  

Apparently, you are in a remand from the Board.  This means you can submit new evidence.  Have you ordered a copy of your Cfile so that you know exactly what is in it, and what they say?  If you dont, you are flying blind and need to get your hands on the C file pronto.  

If you have ordered your cfile and have it available, and you are certain the VA has your favorable evidence in its possession, then the chances are good your favorable evidence was not read, a very common occurance.  

You can try resubmitting favorable evidence, or, if you lack compelling favorable evidence, then you can try an IME/IMO.

Often independent docs are not familiar with the language necessary that VA is looking for.  I am not that familiar with the requirements for R-2, but you can search cases where they have been won or lost.  

It sounds like the stakes are high for you.  Is it too late to ask for a hearing?  Asking for a hearing may buy you some time to 1) obtain your cfile  2) get an IME/IMO if necessary 3) obtain professional legal help, that is a lawyer.  

Without know specifics of your case, we can not provide specific help.  We can only provide general help.  Specific help requires specific details of your case, General help requires only general information.  

In college they called it "significant digits".  In other words, your answer can be no more specific than the information you provide.  This is why lawyers always want to read your decisions, they dont rely upon your interpretation, else their advice will be no better than your interpretation.   

[FormerMember]

Dolphin 25, please give me a few days. I'm right in the middle of a Hospice. When they die, I'll be right back to answer this. The long and short is you are entitled to R1 and I'll tell  you why in detail ASAP. Bear with me, sir.

A sends