100% Disability & Housebound - Aid & Attendance?

[minerva18]

Hello,

I apologize if this is not the correct section for this question.  I am not a veteran.  My father is a veteran of the Marines, served in Vietnam and was also stationed at Camp Lejeune.  He was just recently awarded a 100% disability rating for Parkinson's Disease and the other associated conditions that are tied to it.  He was also granted SMC(K1).

He no longer drives, lives in an assisted living facility and in my opinion would be deemed housebound.

My question is shouldn't the VA have automatically considered him for aid and attendance SMC(S) level?  If so, should I be looking to file an appeal to his initial claim, which has been closed out, or file a new claim?

In addition, can't A&A also be considered at the SMC(L) level and if so could he be considered for that?

Any advice would be appreciated.

Thank you

Edited December 9, 2018 by minerva18
additional info

[FormerMember]

I fight this battle for my clients every day. The legal standard of review is not that you have solely lost the use of your lower (or upper) extremities. While VA tries to frame the discussion in that vein, the truth is that if you cannot walk without kissing the concrete and incurring more damage, then, from a strict safety standpoint, you have effectively lost the use of the extremity(ies) in question. I now win these based on last year's Jensen v Shulkin decision. Basically, §3.809(c) says if you use "assistive devices" such as canes, crutches, wheelchairs etc., you meet the definition of loss of use. VA's M 21 tries to characterize that holding as applicable strictly to SAH, SHA or an automotive grant. Negative, folks. I just won this argument (again) at the BVA Sept. 28th. See attached decision and page three under Discussion. And, no. I'm not an attorney, just a lowly agent who refuses to take no from any RO chucklehead rater. 

You don't win many of these higher SMC ratings at the RO. The M 21 prevents that. You also don't win them because your have a stellar argument. You win them because you are right and they are wrong. If they are right only 27% of the time, you can almost rest assured that you are holding an illegitimate denial. Look at attached R1 redacted below. VA decided to CUE themselves nine times instead of fight me. That's rare.

I have been accused of cherry-picking these SMC claims as easy and financially lucrative. Not. The average life span of one of my SMC claims is generally less than a year from the 526 EZ filing to the BVA grant because most are advanced on the docket at the VARO for me. I ask for a "terminally ill" flash on VBMS. That flash is a hyperdrive motivator much like being homeless or in financial trouble. A win generates about two-three months or so of benefits-not four years worth of baksheesh. That is how it should be. Money should never be the motivator for helping Veterans. Unfortunately, that seems to drive many to this calling. It embarrasses me no end. 

SMC claims are the hardest to win and the most difficult to fight for. There are only a handful of us who even understand all the permutations of SMC and know how to ensure a win. Small attorney outfits like quick, in-and-out filings with a DRO review and a partial win. They absolutely hate prolonged litigation or the intricacies of an SMC appeal to the BVA. Always remember, it's a recipe-just like baking cookies.

Merry Christmas and leave no one behind. Never, never never.

 

 

r1 redacted.PDF

BVA grant 9-28-2018 redacted.pdf

Edited December 9, 2018 by asknod

[Buck52]

 Is the Parkinson his original rating? if he is in his appeal limits less than 1 year since his decision   yes you guys can appeal and request the Appropriate SMC

NOD Form 21 0958

SMC(s) is available to veterans who (1) have a 100 percent rating and an additional disability rated at or combining to 60 percent or more, or (2) who are substantially confined to his or her dwelling or immediate premises as a result of a service connected disability

if he is 100% P&T  it depends on how severe is condition is or  he has loss of uses of a body organ or arms/legs 

if he was not able to use his arms/legs or missing ect,,,ect,,, or have loss of use of them because of his 100% Parkinson...they should have infer the  correct SMC at least the SMC S H.B or A&A . and possibly other SMC if he meets the criteria.

Norm is a 100% P&T veteran needs to have another condition rated at 60% or above  to meet the SMC S H.B. Criteria

The worse a Veteran is with his  s.c. condition or disease/or multi s.c. conditions the more higher SMC.

 

Edited December 9, 2018 by Buck52

[minerva18]

Thank you for the reply.

The 100% rating is the original rating which we just received in September.  There were multiple issues we filed for related to Parkinson's.  They awarded him 100% based on some of them and at the same time also deferred on some of them pending an exam with a psychologist.  After the psychologist exam the remaining conditions rated at 50% combined, but they are tied to the Parkinson's so its not a separate condition.  They awarded no additional money based on that 50%.  This would eliminate point (1) above.

I feel he qualifies for point (2) because he is confined to his premises since he can no longer drive.  

He does not have full loss of use of limbs.  He certainly has limited use due to the Parkinson's which is in an advanced stage.

 

Edited December 9, 2018 by minerva18

[Buck52]

Great Post Alex..some great information here.

Thanks.

[porgee]

 

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Edited March 10, 2019 by porgee

[broncovet]

The criteria for A and A is contained here:

https://www.law.cornell.edu/cfr/text/38/3.352

"Loss of use" is one way to get A and A, but not necessarily the only way, at least the way I interpret the regulations.  Of course, its true that if you were, say, unable to feed yourself, you would probably have loss of use of one or more hands or arms.  

In particular, "loss of use" could come either from a physical or mental condition.  One example of a mental condition that rendered a Veteran "unable to care for the wants or needs of nature" could be Alzheimers.  Some Alzheimers patients have no idea where they are.  Without someone to give them care, they would surely perish.  Its possible their arms and legs work just fine, but their mental state is such that they still cant care for themselves.  

As Alex has pointed out previously, it helps when your doctor uses the magic words:

Quote

The Veteran is unable to care for his own daily needs such as feeding, bathing, dressing, etc., and would be confined to a nursing home unless he has Aid and attendance care at home.  

The idea here is all about money.  Its cheaper to pay the Veteran for someone to come into his home and bathe and feed him, rather than pay for nursing home care.  Nursing homes are expensive.  If your doc can document this, my intuitive guess is that you should eventually win A and A.