M21-1 Adj. Procedure Manual

[Guest Morgan]

I found this in the M21-1, but don't know if I should include this in my husband's claim, since it might have changed.

M21-1, Part I April 19, 2002

Change 86 Erratum

a. General. If entitlement to SMC under 38 U.S.C. 1114 exists on account of the loss, or loss of use, of both lower extremities, the veteran also meets the requirements for specially adapted housing under 38 U.S.C. 2101. Conversely, entitlement to specially adapted housing because of loss or loss of use of both lower extremities also meets the requirements for corresponding SMC entitlement.

Does anyone here know if this has been changed since this change? And what does Erratum mean here?

Edited October 15, 2005 by Morgan

[Guest Berta]

Erratum just means correction or change in text-

I am puzzled by what you posted and cant find it-

Per the VBM (2005)

Special Adaptive Housing Grant (38 USC 2101)

requires:

loss of or loss if use of both lower extremities, precluing locomotion without braces, canes, crutches, or wheelchair

or blindness in one eye and also anatomical loss or loss of use of one extremity

or loss of use one one ,lower extremity together with organic disease or injury ot loss of use of or loss if one upper extremity that would affect propulsion and balance to preclude motion without use of wheelchait, canes, crutches, or braces

or the loss of or loss of use of both upper extremities so as to preclude use of the arms at or above the elbows.

M 21-1 Part IV para. 22.01 and 22.11 revised April 2005

In Kilpatrick the VA had initially barred Sec 1151 vets from receiving this benefit-

the M 21 had violated the Kilpatrick decision and this revision corrects that violation.

Interesting because this is crucial to my claim.

Due to Sec 1151 the VA stated flatly that the veteran was not entitled to SMC.

when they awarded me his 100% posthumously.

The General Counsel held, just as in Kilpatrick, that Sec 1151 claimants are not barred from SMC considerations. I sent the VA the OGC decision as I had to CUE their 1997 decision not to award SMC.

I will try to remember this one too if I need it-

Section 1151 claimants are barred from many benefits- it is not fair and slowly VA has corrected some of these deficiencies-I expect my claim under Bonny V Principi will allow Sec 1151 widows and widowers ALL accrued benefits. As it stands now a widow or widower of a vet who the VA has malpracticed against the veteran to the point of causing the vet's death only get 2 years of accrued.

The Bonny regs state that any death after Dec 16th 2003 will require the VA to pay ALL accrued benefits.

(the regs again forgot the Sec 1151 survivors and did not state SC death as it is an assumption in the regs)

My point i my claim to VA is since my husband couldn't last until Dec 16, 2003,due to piss poor VA medical care, they owe me more accrued- a year in his case.

This I believe would involve a Precedential decision therefore others adversely affected by the Bonny decision, like me, could get our equal rights established,as 1151 claimants.

For over 2 and one half years the VA has stated this would be decided administratively but they seem to have their thumbs up--- well--- it is part of my DRO review but no one wants to deal with this claim.

I might have to file an Administrative review request on it with VACO. That would be fun.

These regs often HAVE to be challenged.

We would not have the Nehmer regs and retro unlike any otjer retro awards if it wasn't for Beverly Nehmer and NVLSP.

Veterans who die under a Sec 1151 death leave spouses who are NOT eligible for CHAMPVA.

Only if the vet had 100% P & T in their lifetime, can the spouse be eligible for CHAMPVA.

Last year I was talking to my CHAMPVA rep and she said it was very painful when they had to tell spouses that since their spouse died under 1151 ,(and had no 100% SC P & T) they were not eligible for CHAMPVA .

That is most unfair- it means the VA can kill you but not provide your spouse with the same Insurance program that a direct SC death would give them.what is even more awful -I asked if she got many requests from Sec 1151 spouses and she said yes!

Just how many vets are they putting on ice due to malpractice????

[Guest Morgan]

Berta,

I will try to find where I got this. Copy and paste is good, except when I need to know where I got it. :( At this point, I feel like the guy in the TV commercial--"You have just rearched the end of the Internet..."

As you know I've been researching SMC and I understand it much more now. I've been trying to research some for you, too, but I get a little lost, not knowing more details. One thing for sure, you are NOT at the S level. That much I could help you with. But you are a lot better at this than I am, so you probalby already have that covered.

The M21-1 excerpt I posted opens a new route to compensation for some vets with SAH with A&A--if it is regulatory and enforceable, not just adminstrative.

I mentioned this excerpt to the rater and she said, "You probably found that on a veterans board or something, it wouldn't have been in our published information." Well, that set me back on a hunt, because I knew it was "official" somehow or I wouldn't have saved it to my claims file on my computer. Once I found it in the M21-1, that told me something else: if she didn't know it was in the M21-1, then they didn't consider it for his claim when they decided his SMC level. I kept hearing your words in my ears, "Use their words against them." So I plan to do that. This looks done and dusted to me!

My only concern is that the VA can legally rescind the SAH before the grant is dispersed (I don't know the reasons). I don't want to give them a reason to change their mind about the SAH to keep from awarding the R level.

I'll get back to you about where this came from.

Carrie

[Guest Morgan]

Berta,

Here's the link to the excerpt from the M21-1 that you said you were confused about. You'll need to scroll down pretty far to see the change I asked about.

http://www.warms.vba.va.gov/admin21/m21_1/part6/ch08.doc

Carrie