Approved For A & A

[gdsnide]

Asked a question a day or so ago pertainng to A & A for my Wife & myself,

As I had said we have all the Docs reports to back it up.

Called the 1,000 number today & was informed it was approved.

At what percentage I have no idea.

My only problem is that the talking head on the 1,000 line may be wrong.

I certainly hope not.

Does anyone have any idea what percentage they usually rate at & yes I'm rated at 100% T & P.

Also, Thank each & everyone who responded with some ideas &/or advise

GARY

[sixthscents]

To be honest SMC is awarded at differing levels for differing NEEDS... its kinda fact dependant, so unless you say what you are rated 100% for, then probably giving you a coherent answer is going to be impossible.

However, A&A, and housebound and 2 seperate things, housebound being paid at an SMC rate of (s) and A&A (k) and up...

Generally the more limited in physical activity or more in need of constant care, the more A&A you can get.

For instance I have loss of use of both legs below knee... with an smc rating of (l) 1/2... you can have partial ratings as well as whole, and by that I mean you can qualify for not the next level of a&a, but 1/2 of it... again depending upon the facts.

[Guest rickb54]

Oh just to set the record straight, there is no requirement to have a Permanet 100% rating.. all that requires is a 100% rating

Date: February 2, 1994 O.G.C. Precedent 2-94

From: General Counsel (022)

Subj: Special Monthly Compensation Under 38 U.S.C. § 1114(s)

To: Chairman, Board of Veterans' Appeals (01)

QUESTION PRESENTED:

Does a temporary total rating based on convalescence, under 38 C.F.R. § 4.30, satisfy the requirement in 38 U.S.C. § 1114(s) of a disability rated as total for entitlement to special monthly compensation?

COMMENTS:

1. Section 1114(s) of title 38, United States Code, provides a special rate of wartime disability compensation for veterans who have "a service-connected disability rated as total" and meet other criteria not relevant to the present inquiry. (Section 1134 of title 38, United States Code, provides that the same rates of compensation shall be paid for peacetime disability.) Public L. No. 86-663, 74 Stat. 528 (1960), added subsection (s) to what is now section 1114. The statutory requirement for "a service-connected disability rated as total" has remained the same in that section since that time.

2. Section 4.30 of title 38, Code of Federal Regulations, entitled "Convalescent ratings," provides a total disability rating without regard to other provisions of the rating schedule when treatment of a service-connected disability results in surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals, or immobilization by cast, without surgery, of one major joint or more. The duration of these ratings is limited to a maximum of twelve months beyond the period of hospitalization or outpatient treatment during which the qualifying treatment occurred. See 38 C.F.R. § 4.30. VA extended the Schedule for Rating Disabilities to authorize such temporary total ratings, then called temporary surgical ratings, in 1950. Extension 7, Veterans Administration Schedule for Rating Disabilities (1945

ed.) (July 6, 1950). Thus, we may presume that Congress knew that temporary total ratings existed when it enacted Pub. L. No. 86-663 in 1960. Ranes v. Office Employees Int'l Union Local 28, 317 F.2d 915, 918 (7th Cir. 1963).

3. Shortly after enactment of Pub. L. No. 86-663, the Administrator of the Veterans Administration issued Instruction 1 "to implement the provisions of Public L[. No.] 86-663, pending revision of pertinent VA regulations and procedural manuals." In that instruction, the Administrator interpreted the phrase "a service-connected disability rated as total" to mean "a single disability rated 100 percent under regular schedular evaluations without employment of exceptional provisions for temporary application as in paragraphs 28, 29, and 30 . . . [of the] 1945 Schedule for Rating Disabilities." Instruction 1, Pub. L. No. 86-663, para. 3(a)(1) (Sept. 30, 1960). Shortly after the Administrator issued that instruction, the General Counsel said that this interpretation accorded with previously expressed views of the General Counsel that:

the temporary ratings authorized by these paragraphs do not constitute regular schedular ratings in the ordinary sense but rather the granting of a monetary benefit for a specified period of hospitalization or convalescence, at the expiration of which the veterans concerned revert to the ratings to which their disabilities entitle them under the 1945 Schedule of Disability Ratings.

Memorandum to Chief Benefits Director, on Interpretation of Pub. L. No. 86-663 (Jan. 25, 1961).

4. VA incorporated this interpretation into its regulation implementing Pub. L. No. 86-663, codified at 38 C.F.R. § 3.350(i), by providing that "the special monthly compensation . . . provided by 38 U.S.C. § [1114](s) is payable where the veteran has a single service-connected disability rated as 100 percent under regular schedular evaluation and" meets other criteria. 27 Fed. Reg. 4739 (1962) (emphasis added).

5. In 1973, VA changed the language of the regulation to provide that the special monthly compensation is payable to veterans with "a single service-connected disability rated as 100 percent without resort to individual unemployability" and who meet the other criteria. 38 Fed. Reg. 20,831, 20,832 (1973) (emphasis added). Although VA intended this change in regulatory language as a liberalization, it did not thereby intend to make section-1114(s) special monthly compensation payable to veterans with a single service-connected disability rated as total under the provisions of 38 C.F.R. § 4.28, 4.29, or 4.30. The change was "to provide a liberalization applicable to those who have a service-connected disability evaluated at 100 percent . . . pursuant to the 'extra schedular' provisions of [38 C.F.R.] § 3.321." 38 Fed. Reg. at 20,832. Hence, the VBA manual provides that ratings of 100 percent under 38 C.F.R. § 4.30 may not serve as a basis for entitlement to section-1114(s) special monthly compensation. VBA Manual, M21-1, part VI, para. 8.06 (Sept. 21, 1992).

6. The first step in determining whether VA's interpretation of section 1114(s), as codified in 38 C.F.R. § 3.350(i), is inconsistent with the statute is to determine the meaning of the statute. We are not aware of any case in which the United States Court of Veterans Appeals (CVA) has interpreted the language of section 1114(s) in question. Since there appears to be no pertinent case law, we must interpret the statute ourselves. "The starting point in interpreting a statute is its language, for 'f the intent of Congress is clear, that is the end of the matter.'" Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151, 2157 (1993) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984)). The meaning of a statute must, in the first instance, be sought in the language in which the act is framed. Caminetti v. United States, 242 U.S. 470, 485 (1917). If the language is plain and does not lead to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent. Id. at 490. In our opinion, the language of section 1114(s) is plain and unambiguous. It requires "a service-connected disability rated as total." It means a service-connected disability assigned a rating such that compensation is payable at the rate authorized in 38 U.S.C. § 1114(j). Even VA's regulation on "[t]otal disability ratings," 38 C.F.R. § 4.15, provides no narrower meaning for a total rating.

7. We find nothing in the language of section 1114(s) to indicate that Congress meant to exclude service-connected disabilities rated as total under 38 C.F.R. § 4.28, 4.29, or 4.30. (Although it is not the question before us, we also find nothing in the language of section 1114(s) to indicate that Congress meant to exclude service-connected disabilities rated as total under 38 C.F.R. § 4.16, i.e., a total rating based on individual unemployability.) Where statutory language does not establish a condition to its application, such a condition may not be construed unless a straightforward application of the language as written would violate or affect the clear purpose of the enactment. Dameron v. Brodhead, 345 U.S. 322, 326 (1953) (citations omitted). The clear purpose of Pub. L. No. 86-663 was to create a rate of compensation intermediate to the rates for veterans so disabled as to warrant a higher rate of special monthly compensation under 38 U.S.C. § 1114 (such as for the permanently bedridden or those needing the regular aid and attendance of another person) and veterans with a total disability who nevertheless can supplement their disability compensation by working. S. Rep. No. 1745, 86th Cong., 2d Sess. 2 (1960), reprinted in 1960 U.S.C.C.A.N. 3197, 3198. Congress did not manifestly restrict the applicability of section 1114(s) to total ratings of indefinite duration, and the application of section 1114(s) to temporary total ratings would not violate the clear purpose of Pub. L. No. 86-663. Accordingly, VA may not impose its own restrictions on the applicability of section 1114(s). In our view, it is likely that the CVA would invalidate 38 C.F.R. § 3.350(i) on these grounds in an appeal in which its validity was at issue.

8. Although the General Counsel in 1961 opined that VA's interpretation of Pub. L. No. 86-663 accorded with the General Counsel's views with regard to the nature of temporary total ratings, we do not find the nature of temporary total ratings a persuasive reason for excluding them from consideration under section 1114(s). The temporary total ratings authorized by 38 C.F.R. § 4.28, 4.29, and 4.30 may well not be regular schedular ratings in the ordinary sense, but the General Counsel gave no reason for the belief that Congress intended to exclude those ratings from consideration under section 1114(s). Given that the plain and unambiguous language in which Congress expressed its intent manifests no exclusion based on the nature of certain total ratings, we conclude that there is no such exclusion.

HELD:

The plain and unambiguous language of 38 U.S.C. § 1114(s) does not restrict the nature of total ratings that may serve as a basis of entitlement to the special rate of disability compensation which section 1114(s) authorizes. A temporary total rating based on convalescence, under 38 C.F.R. § 4.30, satisfies the requirement in section 1114(s) of a disability rated as total.

Mary Lou Keener

Edited February 7, 2007 by rickb54

[Berta]

Gary- I sure hope the 800# "talking head" was actually talking out of their head.

As I recall you made a very good medical argument for this benefit-both you and the wife-

Let's hope this news is for real and you hear something definite real soon.

After what you went through Gary- a few more days or even weeks-is nothing for you to deal with -you already went through a lot to get SC-and I HOPE this news is the

Real Deal.

[gdsnide]

To be honest SMC is awarded at differing levels for differing NEEDS... its kinda fact dependant, so unless you say what you are rated 100% for, then probably giving you a coherent answer is going to be impossible.

However, A&A, and housebound and 2 seperate things, housebound being paid at an SMC rate of (s) and A&A (k) and up...

Generally the more limited in physical activity or more in need of constant care, the more A&A you can get.

For instance I have loss of use of both legs below knee... with an smc rating of (l) 1/2... you can have partial ratings as well as whole, and by that I mean you can qualify for not the next level of a&a, but 1/2 of it... again depending upon the facts.

OK. Here's where I am at thanks to all of the help I got from BERTA.

(Long Live Berta)

I'm 100% T & P for Epileptic Seizures which resulted from me being in a bar in Japan in 1967 & 2 SP coming in said bar.

I was rather intoxicated so am a bit fuzzy as if I said something to them or if they didn't like my looks or whatever.

Result being I was attacked by 2 SP using their sticks & banging me about the head & shoulders (As I remember it) & then when I went down on the floor was kicked & stomped on. Luckily had a Ship Mate who saw the entire incident.

The VA agreed that this is what caused the Seizures.

I see the VA Neurologists as I have them ( Seizures) on a regular basis ( Despite all the meds) & they believe that said seizures are getting worse as I keep changing from one type of seizure to another.

What ever type of seizure I have I always wind up hitting the floor which is a bit hard on the body. lol

In 1996 I had Status Epileptious ( Only Seizue which by itself can kill you & again in 2,007) which lasted for a total of 12 hours having a seizure every 2-3 minutes. That was the one in 1996

At present I am having what is called "Cluster Seizures" meaning I have 1 or 2 & recover & then within 15-45 have another. This can happen 5-6 times.

Was in hospital about 2 weeks ago with "Clusters" & the Neuro had cleared me to go home but then I have another one of the damn things & get to stay for the night.

Really makes life interesting when one has no idea when these will start.

Also, with the Seizures & all the meds my short term memory is dead. My interest in the world or any other things is really of no concern to me & I attributer that to the Seizures & all those wonderful Seizure meds of which I take 30 different pills a day.

My Grand daughter & I went for a short walk in the neighborhood & had a debate on which way to go to get back home. She was right & I wasn't. Also, she's only 11 years old.

I once thought it was funny when I read about some guy where he could not remember from one day to the next.

Now, I fail to see the humor as I can't remember what I did yesterday.

My sleeping habits really suck & my Shrink at the VA say's it because I have "PTSD" chronic & severe. Which even though a VA Shrink says this & I was in a war zone the VA denied me compensation for PTSD.

Was told that was not the type of enviorment that was likely to cause PTSD.

I asked him when it would stop & he said it won't.

Hope that is enough information.

If not just ask.

Thanks for the reply

GARY

Oh ya, my Wife had Hepitis C which she got thru a Blood Transfusion during an operation. What i can remember is she now has Hep C,Diabitis,Chroglobanemia (A disease on the bone Marrow),Cirrossis of the Liver ( She has never drank enough to ever have gotten this from Alcohol. At present she is in "End stage Liver Failure" but the Liver is still working & enough blood is getting thru is.

Cirrossis is actually a scarring of the Liver & the Blood can't get thru the Liver.

Hence, it finds another way.

Normally it goes thru the blood weins in the throat or the stomach but since they are rather thin they are prone to bursting.

Medicial name for that is Varicies & some have been known to drown on their own blood.

She also has a couple of other things wrong from that damn hep C but I dodn't remember what it is.

Also, she has to give me my pills as I keep getting them messed up ( Even though they are put in pill taking containers by my Daughter) Once before she was in charge of my pills I couldn't find my pill box ( Which is Blue) & went over & took hers which are in a Pink Container.

I'm still trying to figure out why I did that. lol

Again, Thank U for your concern & any questions Please ask

GARY

[gdsnide]

Gary- I sure hope the 800# "talking head" was actually talking out of their head.

As I recall you made a very good medical argument for this benefit-both you and the wife-

Let's hope this news is for real and you hear something definite real soon.

After what you went through Gary- a few more days or even weeks-is nothing for you to deal with -you already went through a lot to get SC-and I HOPE this news is the

Real Deal.

Berta,

I must say I could never have gotten SC without U.

I explained to the other poster what is the matter with me & my Wife.

I never could make sense out of those SMC ratings so just about gave up on them.

Asked on one post what A & A for my Wife & I was worth & got a reply of $3,214. a month but have no idea what percentage that would be or really have no idea what amount would be at all.

But, I do hope it's $3,214.00 more a month.

Again, I must say , "Thank U for all your help."

Hey, do you know anything about Clark Evans ( The Lawyer I used ) as I find it impossible to get in touch with him.

Again Thank You for putting up with all my questions

GARY :P ;)

[gdsnide]

Berta,

I must say I could never have gotten SC without U.

I explained to the other poster what is the matter with me & my Wife.

I never could make sense out of those SMC ratings so just about gave up on them.

Asked on one post what A & A for my Wife & I was worth & got a reply of $3,214. a month but have no idea what percentage that would be or really have no idea what amount would be at all.

But, I do hope it's $3,214.00 more a month.

Again, I must say , "Thank U for all your help."

Hey, do you know anything about Clark Evans ( The Lawyer I used ) as I find it impossible to get in touch with him.

Again Thank You for putting up with all my questions

GARY ;) :P ;)

Berta,

One more thing. Will inform U if the "Talking Head" was right or not & think it may be helpful to others who may be filing for A & A.

Also like U said, 5 days, 5 months or 5 years ( Hope not that long lol) is really no difference as I waited 9 years on my First SC. Rule #1 ... Never give up :P

GARY