New SMC rating?

[ArmChairRanger]

I am currently rated SMC (L-1) Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (l) and 38 CFR 3.350(b) on account of loss of use of both feet from 01/2018.

I had submitted a claim for sleep apnea based on weigh gain and submitted an examination for permanent need for aid and attendance to show that I could not exercise properly. The sleep apnea claim was denied but the VA approved a second SMC (L-1) Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (l) and 38 CFR 3.350(b) on account of being so helpless as to be in need of regular aid and attendance from 08/2019.

Do you have to submit a claim for additional SMC based on the new rating or should that be automatic?

Found this information on asknod.org.

The easiest way to get to R1 is the most obvious- §3.350(e)(1)(ii). You start at SMC L. If you are entitled to Aid and attendance, you are awarded SMC L #1. If you also lose the use of  both your upper or lower extremities, or an upper and a lower extremity, you get another SMC L- #2. Two SMC Ls or any combination of of two Ls, Ms, or Ns gives you a bump to SMC O. SMC N ½  with a K will too. But-here comes the legal pyramiding- if you have two of any of the rates between L and N, with no condition being counted twice, and one of the ratings is for Aid and Attendance, you advance to SMC R 1 automatically.

[jamescripps2]

First off, you are stating that you have two L-1 ratings. That should be stated as an L-1 for the loss of use of two feet, and as an L-2 for the second L award for the A&A.

In any case, The L-1 award for loss of use of two feet and the L-2 award for the A&A should get you to the O rating and therefore the A&A would automatically become R-1, unless the need of A&A included your loss of use of two feet. If indeed, the feet were used to determine the need for A&A, that would be considered as pyramiding and you would be given an M award instead of the R-1.

You need to re read your decision and see exactly what disability was used in the determination of the need of A&A. If your loss of use of twa feet was not used in the determination of the need of A&A you need to appeal that decision!

[broncovet]

James Cripps is one of the most knowledgeable, if not the most knowledgeable hadit member, and it sounds like you have been given good advice.  I do take exception, however, to the advice given on another forum suggesting, "you advance to R1 automatically".  

    I am not competent to opine on advanced levels of SMC, and would suggest you discuss this with a knowledgeable Veterans law firm such as CCK law, who often post information which helps Veterans.  

    I found no regulation suggesting an "automatic" advance in ratings.   While it IS possible that VA advance your rating without any action on your part, its also true that VA is supposed to award any SMC without any intervention on your part also, and we all know that VA does not always grant SMC even when the Veteran meets all the eligibility criteria.  Instead, the Veteran would need to apply for additional benefits, such as higher levels of SMC if. they were not already awarded.  I think its a mistake to think "VA will automatically" increase your rating, when my experience has been the VA automatically likes to delay, deny, or lowball benefits "automatically" awarding far less than the Veteran deserves.  

     Generally, Veterans need to fight for their benefits, and assuming they will be awarded automatically is much more likely to result in disappointment.  Instead, I recommend you file for any benefits you feel entitlted to, including R1.  

 

[Rattler]

I have to agree with you both. " I do take exception, however, to the advice given on another forum suggesting, "you advance to R1 automatically".  If someone catches the SMC it may seen like its automatic. Most times like with everting else you have to tell the VA. When I had my knee replacement they awarded SMC for three months than took it away.

[broncovet]

If you are waiting on VA to "automatically" advance your rating to R1, you may be waiting a very, very long time, "even if" you already meet the applicable criteria.  If in doubt, apply for it, sooner rather than later.  

For example, whenever the Veteran meets the criteria with a single 100 percent disability plus additional disabilities that combine to 60 percent seperate and distinct, the VA is supposed to adjuticate and award SMC S, when ever the single 100 percent rating is awarded.  

However, in this forum multiple, multiple Veterans have complained they met this criteria and VA "did not" automatically award SMC S, and then, after they applied, at least some of these got the award.  

If you expect the VA to "scan your medical records" daily to see if you now have met the criteria for a higher level of SMC, you are likely to be disappointed.  

At least one reason:  For example, you may be getting Aid and Attendance care "from a relative" and VA may well not even be aware that you even meet SMC L (aid and attendance) criteria, because I doubt if your relative(s) will chart this on your medical records that you have been performing needed ADL's.  

When you apply for SMC (S) or SMC (L) Aid and attendance, the application is done on a form which generates a C and P exam:

https://www.vba.va.gov/pubs/forms/vba-21-2680-are.pdf

While VA "is not requiured" to do a c and p exam for every Veteran who applies for an increase in benefits, its interesting to note that a c and p exam is generated whenver the Veteran applies for SMC S or SMC L.  

The c and p exam may be "automatic" when you apply for Smc S or SMC L, but the award is far from automatic.  

 

 

Edited December 11, 2023 by broncovet