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Two SMC "L" awards equal an advancement to a SMC "O" award.

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jamescripps2

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First off I am R-1 to include the SMC "O". One "L" for the loss of use of two extremities and the other "L" for A&A. I read a lot of prior BVA decisions. I remember one case where the board awarded A&A,  SMC "L". Furthermore, the board said that it refused to award a second SMC "L" for A&A for another separate and distinct condition which would entitle the appellant to SMC "O".  Did I dream this up, or can an appellant actually receive two SMC "L" awards by showing two separate and distinct needs for A&A, thereby advancing to SMC "O"?

I wish that I had bookmarked the case but it didn't interest me at the time, although it bugs me now! My brain does seem to burn out and short circuit on these old hard questions.

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There are different degress of Aid and Attendance, mostly which depend on the level of care you need.  (That is, do you require a nurse, or can a less trained person give you the help you need.  For example, if you were on IV's, a nurse needs to start and change an IV.  This means you may be eligible for a higher level of SMC L, Aid and Attendance.  The following explains it but less clear: 38 CFR 3.352 b

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(b)Basic criteria for the higher level aid and attendance allowance.

(1) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met:

(i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p).

(ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.

(iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.

(2) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met:

(i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.

(ii) As a result of service-connected residuals of traumatic brain injury, the veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.

(3) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof.

(4) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(3) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice.

(5) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional.

(6) 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.

(c)Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.

 

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On 10/11/2019 at 8:20 AM, jamescripps2 said:

First off I am R-1 to include the SMC "O". One "L" for the loss of use of two extremities and the other "L" for A&A. I read a lot of prior BVA decisions. I remember one case where the board awarded A&A,  SMC "L". Furthermore, the board said that it refused to award a second SMC "L" for A&A for another separate and distinct condition which would entitle the appellant to SMC "O".  Did I dream this up, or can an appellant actually receive two SMC "L" awards by showing two separate and distinct needs for A&A, thereby advancing to SMC "O"?

I wish that I had bookmarked the case but it didn't interest me at the time, although it bugs me now! My brain does seem to burn out and short circuit on these old hard questions.

https://www.va.gov/vetapp18/files3/1814284.txt

The above resulted from a remand from the court.  It represents two regular aid and attendance ratings becoming R1.  I have several of them but this bookmark I was able to readily find and post.  Although not sure if it is a precedent decision it shows it is possible to get to R1 on two SMC (l) ratings.  It may depend on the judge but the court had already said it was possible and the board agreed and awarded the the two (l) ratings.

VICDE

 

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The regulation (§3.350(e)) reads that any two awards between the rates of L and N will yield SMC at the O rate. The qualifier for R1 is simply that one of those awards be for SMC L for A&A. I have seen several "Double A&A"s yielding SMC R1. R2 is not that hard to attain if you need physical therapy every day in your own home and are being followed by a licensed doctor or nurse or your caregiver is being supervised by one. I just won one (R2)in Phoenix with VLJ Michael Lane arguing that PT is one of the qualifiers. You don't have to have indwelling catheters or a caregiver plugging your IV into the PICC line.

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