Requirements for SMC-L Aid and Attendance.

[Eddie6464]

hello fellow patriots. Im looking to for some clarity of my smc-L for aid and attendance claim. I just had a higher level review officer hearing and was told i need not a combine 100% rating which i have but that i need a single disability to be rated at 100%. when reading the cfr i dont see that. the officer said i would qualify because of my need for aid and attendance is clear since ive been in the caregiver program for last 8 years but that i needed a single disability at 100%. is this correct? thank you guys and gals!

[broncovet]

I will provide, below, the criteria for A and A.  Its been my experience, when you apply, you will need a c and p exam for a doctor to determine your need for A and A.  Note:  There are different levels of a and A, and its available under both pension and compensation.  Under pension, its not required that you are 100 percent P and T (service connected).  As far as interpreting what the regulations state, I try to avoid that, the VA has their own ideas how to interpret their own regulations. I simply suggest you apply, this will likely trigger a c and p exam.  

IN a nutshell its gonna boil down to your exam.  Tbird recently (I understand) got A and A, so she may be able to better answer as have others.  

 

Quote

 

§ 3.352 Criteria for determining need for aid and attendance and “permanently bedridden.”

(a) Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance (§ 3.351(c)(3): inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others.

(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.

 

 

 

[Tbird]

I have a single disability at 100% and additional disabilities separate from the 100% so I received L 1/2. So I don't have any experience with a rating under a 100%, However I think it can be inferred from this line where it mentions must receive maximum compensation.

"(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)."

[FormerMember]

The HLR reviewer is mistaken. The only showing of a need for a 100% rating used to be SMC S... §3.350(i).

(i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). 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 and,

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, 

That requirement is also evoked in §3.350(f)(4) when discussing a bump up from SMC L to M using the "independently ratable" language and the requirement of a single 100% disability versus combining several ratings to arrive at 100%. VA raters are starting to come up with all manner of new interpretations of how this works.

Bradley v. Peake overruled the 100% language in 2008-thus a "total rating" can legally be TDIU at 70% because it is being paid as a "total" schedular rating. Never believe what the VA tells you unless you believe in the Tooth Faery and Santa. A&A is contingent on §3.350(b). Nowhere in there does it say 100% in §3.352(a).  

[Buck52]

In other words a Veteran only needs to be ''Total'' even under the 100% rating,  this means a veteran with a 70% rating but who is considered Total  is the same as a veteran with a 100% rating  for SMC Purposes  When his condition worsens.

So the O.P. WOULD BE ENTITLED TO A UPPER SMC. IN  Regards to the A&A

A 100% sc Veteran would be entitled to SMC  If he/she has another ''separate & distinct  disability rated 60% or higher  would also be eligible for a higher SMC  ..A&A.  DEPENDING ON THE SERVERITY OF HIS/HER DISABILITIES AS TO WHAT CATEGORY HE/SHE IS PLACE ON THE SMC LATTER OR HIGHER LEVEL OF THE SMC FAMILY.....  SO -TO -SPEAK.

[FormerMember]

SMC L, which is described in §3.350(b), lists four "conditions" which merit an award at that SMC level. You need only qualify with one condition.

1.  Loss of use of the upper or lower (bilateral) extremities or one upper and one lower extremity.
2. Total blindness @ 5/200 or less
3. Permanently bedridden
4. Need for the Aid and Attendance of another

Once you qualify for SMC L, you have reached the "entry level" for additional higher-level SMCs above those in SMC K,Q or S. The SMC L conditions are often called the Breniser conditions after a famous case. You must have independently ratable SMC Ls to advance to the highest SMCs like R1 or R2. That means you cannot claim A&A on top of your loss of use of the feet because it's hard to reach the top shelf of the cabinet. Interestingly, you can get two ratings for A&A as long as they are for different needs. You may have disabilities rated as SMC Ks which you can add to SMC L. This begins the SMC "P" series of combinations in §3.350(f). SMC Law is like the Mississippi River. I like to point out that SMC law permits pyramiding. 

With all that said, I've seen Vets who were not at 100% get A&A by virtue of a BVA Judge granting them the benefit based entirely on the list in §3.352. At that point it becomes a de facto 100% rating due to the inability of the Vet to exist without the help of another. Most were TDIU or eligible via §4.16(a) or (b)but had not yet been granted it.

Lastly remember that VSOs are not taught SMC law. They think the ratings table ends at 100%. That clearly explains why so few Vets get SMC at the higher levels.  

[Mr cue]

Note: Prior to enactment of PL 96-12, a Veteran had to be entitled to SMC under 38 U.S.C. 1114(o) in order to establish entitlement to SMC under 38 U.S.C. 1114®(1) and 38 U.S.C. 1114®(2).

You.ii.2.H.9.d.  Processing Claims for Entitlement to a Higher A&A Allowance Under 38 U.S.C. 1114(r)(2)         

Follow the steps in the table below to process claims for entitlement to a higher A&A allowance under 38 U.S.C. 1114(r)(2).
Step    Action
1    Does Does the claim include evidence showing that the Veteran
•    requires ongoing daily skilled care, and
•    in the absence of such care, would require hospitalization, nursing home care, or other residential institutional care?
•    If yes, award entitlement to the higher A&A allowance under 38 U.S.C. 1114(r)(2).
•    If no, go to Step

The way I read all this a lot more veterans should be smc r 1 2 if u receive in home care provide by a company.