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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Requirements for SMC-L Aid and Attendance.


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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!

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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 compensa

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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.  

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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.
 

 


 

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