Awaiting BVA Remand for R-2

[Dolphin25]

Brocovet thank you so much for your response and yes I have requested my C-file either paper file or Disc and I have gotten responses but yet no file and let's see it has been going on 6 yrs since the first request and 4 months for the last request with no response.  I have been at this for 9 years now and think I have done fairly well I just need direction that I can follow and it looks like Alex is willing to give me some and I am very appreciative of yours and his input, you guys are really a blessing to Veterans who pretty much do it on their own with help from you guys and for that I give thanks to God for your willingness to do this as your pay is not in dollars and cents but in satisfaction that what you do enabled us to overcome a great burden in attacking the beauracracy.

[FormerMember]

On 5/19/2016 at 6:23 AM, Dolphin25 said:

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. This much is correct. 3.350(f)(3) was the CUE that granted the L 1/2. A further CUE was (f)(5) for ignoring loss of use of three extremities. Remember, VA raters are clueless on SMCs and try to rely on the M 21 to guide them. 

"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???

 

Okay, let's tear this one down and analyze it. You state that you were granted Aid and Attendance at the L rate. Because of the extra 60%, you were probably already receiving SMC S before the upgrade to L. The 60% (or more but less than a full 100% schedular) takes you up to L 1/2. Obviously to get the bump to M two things had to occur. Either you had to have two 100% schedular ratings (not TDIUs but true 100% schedular ratings) to get M or you met it via loss of use of  three extremities ( both legs and one hand) 38 CFR 3.350(f)(5)

Here's why you get R1. When you have any two of the requirements for SMC L, M, or N, you advance to O automatically. No ifs ands or buts. If you have the bump up clause as you, do, that carries through until O. Now, here's the kicker. If you qualify for SMC O and one of your two qualifiers is A&A, you get the promotion automatically to R1. You'd get R2 if you can prove you need a caregiver 24/7 or some supervisory care by trained medical personnel above and beyond normal. You have mentioned you have loss of use of lower extremities plus one upper. This finding got you SMC M automatically as it is one of the listed ingredients  using 3.350 (f)(5) without relying on 3.350(f)(3) or (4).

Bladder and bowel incontinence are a requirement for SMC O as listed in 3.350(e)(2):

(2) Paraplegia. Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures.

Please note the conjunctive use of "and" above. This makes the requirement a dual one. VA expects you to qualify for both to advance but read on.

This is why you are entitled to SMC O. It makes no difference if the VA granted you SMC L for loss of use of lower extremities in 2003. That is considered a requirement only for SMC L. The loss of use of three extremities is the sole rationale for the SMC M. However, the moment you are diagnosed with the loss of bladder and anal control, the Helplessness clause of the A&A kicks in separately. This, all by itself, entitles you to A&A, Those are now the two requirements I mentioned above that will promote you to SMC O. 3.352(a) holds that you do not necessarily need to comply or qualify with every single one of the enumerated issues to qualify for A&A at the R1 level. You simply need to qualify for most of them. If your doctor is willing to say you have uncontrolled bowel issues, that would be the clincher but I have won this without loss of sphincter control before because you have loss of one upper extremity needed to effect an undergarment change unassisted. This is the ammo for the "helplessness" argument of higher A&A. Think of this like Legos.

However, the argument doesn't stop there. 3.350(e)(3) goes on to state:

(3) Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement.

SMC law, alone, permits pyramiding in this one instance. If you are entitled to SMC O, and one of the entitlements includes A&A, you are allowed to use it as the building block to advance to the higher R1 or R2 automatically depending on your demonstrated need. VA will try to take this sideways into SMC P and one of it's numerous subqualifier combinations. Ignore that argument. When you qualify for R1,  it's like a Monopoly 'chance' card. You leave all the Ks, Ns, Os and Ps  behind and proceed to "Go!" and collect your R1/R2. 

Getting to the R ratings often requires a nexus (IMO) letter from a doctor. VAMC doctors are instructed to avoid the 21-2680 like the Plague and let the VBA schedule their own C&Ps to deny with. I always suggest a truly independent outside source for the IMO. If you're smart and on Medicare instead of a death wish using VAMCs), you should have no trouble planting a 21-2680 in front of them to ask for an assessment. VA uses the peripheral neuropathy DBQ to deny most at question number 13. http://www.vba.va.gov/pubs/forms/VBA-21-0960C-10-ARE.pdf  They slide sideways into amputations and whether that would solve the problem of "loss of use". You want to make sure you have your doctor fill out http://www.vba.va.gov/pubs/forms/VBA-21-0960C-4-ARE.pdf to document loss of use. Include any medical notes substantiating loss of bladder control and point out loss of use of upper extremity to qualify it as true helplessness on top of the loss of use of lower extremities.  Amputation is a "salvage" operation. The relevant law and precedence which control this is Tucker v, West 11 Vet. App. 369; (1998) where the Court held:

The relevant inquiry concerning an SMC award is not whether amputation is warranted but whether the appellant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance.  See 38 C.F.R. 3.350(a)(2)

 

I'm sorry I was unable to give you this advice sooner Dolphin25 but emergent family situations take precedence. I hope you can understand that. In the future, you might want to plan your strategy out earlier such that it doesn't leave you in a precarious legal situation with no time in which to maneuvre or solicit timely advice. I'm not being critical. I just point out that things like this happen to those who advise here. Some, like Carlie and Stretch, pass on and will never offer advice again. 

I'd also like to apologize to Jerrel and John for missing the radio show Wednesday evening for the same reason. I'm usually pretty responsible but exigencies outside my control sometimes arise and prevent me from attending to my commitments.

[Dolphin25]

On ‎5‎/‎21‎/‎2016 at 1:39 PM, asknod said:

You state that you were granted Aid and Attendance at the L rate. Because of the extra 60%, you were probably already receiving SMC S before the upgrade to L. The 60% (or more but less than a full 100% schedular) takes you up to L 1/2.

Asknod, thank you for responding.  From what I remember I filed for Aid and Attendance in 2002 in Las Cruces, N.M.  It took about 4 months for them to respond and they did so by granting me the Aid and Attendance at the "L" rate and I had been receiving it up through 2012 when the reviewed my file and granted me the "L 1/2" rate then on CUE it was raised to the "M" rate.  Everything is in place to get the R-1, I don't understand why they never granted me the loss of bowel control b/c my Doctor has ordered the padded briefs and given me medication, why they would grant Urinary Incontinence and not Bowel Incontinence is another mystery of those with greater brain power than little ol' me.  I know it is secondary to what I already receive now so to me it is no mystery, case closed.  I am just waiting on some direction from you that I can follow and try to tie this thing up.  I did request from my Doctor a letter stating that he is in fact treating me for Bowel Incontinence and has been for a few years now.  Do you think it is too late to submit this as evidence??

 

[FormerMember]

<<<  I don't understand why they never granted me the loss of bowel control b/c my Doctor has ordered the padded briefs and given me medication, >>>>>

 

Well, gee D25, go figure. You don't suppose they have a tendency to low ball and/or no ball you? Or is it just that they're in backlog mode on SMC claims? Or maybe they haven't a clue what they're doing? I just had a guy I'm working with, who's already at S apply for A&A. He won and then they never gave him the bump. They looked at both legs and gave him a SMC K for each one instead of going to SMC O and R1. VA avoids the Rs if they can and prays you don't figure it out. You will note I am not calling it a conspiracy-just a very, very odd coincidence this happens over and over.

[Dolphin25]

Asknod...

Quote

" I am just waiting on some direction from you that I can follow and try to tie this thing up"

 Was that a yes??

[FormerMember]

It's not that easy. I do not have your c-file. I know nothing about the hx of the claim. Is the bowel or bladder incontinence part and parcel of a SC disease? If so, yes. Remember, there are no time limits on SMCs. The moment you demonstrate your entitlement, be it five or fifteen years ago, that is the date of SMC. I suggest you Private Message me to discuss it.