SMC-L Aid/Attendance Question

[8th&IMarine]

I guess I need to know how to go forward. I am 100%P&T schedular AND TDIU.

I intend on filing a SMC-L claim for aid/attendance. I became aware of the form 21-2680 (Exam for permanent need for aid and attendance). My Primary doctor is a VA doctor and will most likely not fill out the form. I have no doctor that I know of that can fill out the form for me.  I know I can file for SMC-L online at E-Benefits but is the 21-2680 a NECESSITY for filing the claim? 

I have gathered the appropriate VA Medical notes which clearly show my need for assistance in adl's such as shoes/socks/bathing/trimming toenails as well as statements such as "Unable to perform ADL's" that are included in most notes by my primary. All of the evidence I will be submitting is contained in my C-File with the exception of a "layperson's statement" from my girlfriend who will attest to my needs. I know the SMC should've been considered automatically at the time of my appeal decisions so I worry that they already looked and decided against it which leads me to the problem of opening a new claim (time for appealing is long gone) without the 21-2680.

Can a FDC be decided based on the above or will it be kicked back because I failed to submit the 21-2680? Or will they move forward if not decided immediately with a C&P? 

[pwrslm]

If they should have included AA consideration in the orig claim decision, would it be easier and quicker to file a supplementary claim citing evidence contained in the orig med file? If the VA should have eval the issue based on existing information in records contained w/in the SM's med file, and did not, the supplementary claim should prompt the examination and be quicker, no? 

The statement from spouse can be considered new/material evidence (that the RO should have solicited in the orig claim).

Edited August 12, 2021 by pwrslm (see edit history)

[FormerMember]

1 hour ago, 8th&IMarine said:

I guess I need to know how to go forward. I am 100%P&T schedular AND TDIU.

First let's clear up your status, sir. You are TDIU permanent and total and being paid at the 100% rate for your compensation. Unless you have a rating of 100% for a single disability, your schedular rating will be less than 100%. That will not impair your ability to obtain SMC at the (l) rate for A&A.

SMC is what is called an ancillary benefit and requires no filing... according to VA. Experience shows us otherwise. Please file a 21-526 EZ requesting entitlement to SMC under §3.350(b)(3). Have your girlfriend fill out a 4138 (and file)  stating what you cannot do by yourself that requires the need for A&A. The VA will send you out for a c&p and the examiner will fill out the VAF 21-2680. Submitting your own is a waste of time. Use §3.352(a) as your guide as to which disabilities to list. By law, you only need one impairment of activities of everyday living to qualify (  Turco v. Brown, 9 Vet. App. 222, 224 (1996).

Your authority for entitlement is vested in Akles v Derwinski (1991), Bradley v Peake (2008) and Buie v Shinseki (2010). SMC is due and payable from the date the medical records first show unequivocally that you needed A&A. Period. VA will attempt to grant based on the day of the c&p for the a&a. That is incorrect. You can file anytime. You are not limited by it being over a year since you were granted Chap. 35 DEA ((p&t). Best of luck.

Edited August 10, 2021 by asknod (see edit history)

[8th&IMarine]

12 minutes ago, asknod said:

First let's clear up your status, sir. You are TDIU permanent and total and being paid at the 100% rate for your compensation. Unless you have a rating of 100% for a single disability, your schedular rating will be less than 100%. That will not impair your ability to obtain SMC at the (l) rate for A&A.

SMC is what is called an ancillary benefit and requires no filing... according to VA. Experience shows us otherwise. Please file a 21-526 EZ requesting entitlement to SMC under §3.350(b)(3). Have your girlfriend fill out a 4138 (and file)  stating what you cannot do by yourself that requires the need for A&A. The VA will send you out for a c&p and the examiner will fill out the VAF 21-2680. Submitting your own is a waste of time. Use §3.352(a) as your guide as to which disabilities to list. By law, you only need one impairment of activities of everyday living to qualify (  Turco v. Brown, 9 Vet. App. 222, 224 (1996).

Your authority for entitlement is vested in Akles v Derwinski (1991), Bradley v Peake (2008) and Buie v Shinseki (2010). SMC is due and payable from the date the medical records first show unequivocally that you needed A&A. Period. VA will attempt to grant based on the day of the c&p for the a&a. That is incorrect. You can file anytime. You are not limited by it being over a year since you were granted Chap. 35 DEA ((p&t). Best of luck.

And this is why I love this sight!!

Thank you for the response, Asknod. Yes, I had a number of appeals pending and when they finished up, my 270% individual claims qualified me for 100% schedular and P&T. 6 months or so later, my earlier remanded claim for TDIU was granted so I'm 100% TDIU as well. 

I knew nothing about the 4138 and I will use it for her statement. As far as the 21-526EZ, would that be the form on the E-Benefits site to file a new claim? 

You answered my most important question also - the 21-2680. So the VA can handle that at the C&P which is good news as I figured if I was able to obtain one through a private doctor, they'd send me to a C&P anyway.

Thanks again! It took me over a decade to get to 100% after appeals, remands, etc. Hopefully it won't be as long this time around 

[FormerMember]

If you could see your rating decision "Code sheet", it lists your ratings history, the Diagnostic Codes used and the history of each in increases with chronological dates. A combination of disabilities adding up to a 100% rating, even though it would probably add up to 270%, means you have a 100% combined rating rather than a true 100% schedular rating for one single disability. I see this TDIU conundrum surface lots of times now that they "part out" the decisions all over Hell's half acre (the National Work Queue). On the Code sheet it will appear as TDIU awarded xx/xx/xxxx followed by "moot due to combined ratings." 

I fooled around to see how high I could jack mine when I finally got my win after 20 years. I have two schedular 100%s, a 60, 40. 30, 10 and two 0%s. I'm half-tempted to add to my AO presumptives by filing for hypothyroidism just for poops and grins but it won't get me more dough so I won't. 

Yes, with the AMA now, it's important to use the correct form. 526s for stuff you've never asked for and the 995 if you've been previously denied. I file CUEs on both forms and send them both in simultaneously because as sure as the sun rises, they'll say the one I used is wrong. You have 50-50 of getting it right at best. Filing both blows their mind. They hyperspazz out for a week and finally delete the wrong one or play dumb. 

Folks here should realize the VA is in trauma right now. They aren't getting any guidance on the new AMA stuff and the decisions are all screwed up with both AMA and legacy terms and language. I just had a recent denial saying I hadn't submitted any new and material evidence. They even forgot to put any favorable findings of fact at the end which is a new requirement for all AMA stuff. It's the "Lost in Space" syndrome. 

[FormerMember]

VA "intake specialists" subscribe to the theory of:  "Has it been filed for yet or not?" So, if you have never filed for A&A, to them it's a new claim. Period. The fact that they were supposed to "infer" it as an ancillary claim by law is immaterial. To them, you have not filed for it yet. If you use the 995 supplemental path, they will do a look back for any prior filing for A&A and see nothing. At that point, due to a short between the ears, they will inform you that you have chosen the wrong form to file with and reject it until you send in the 526. I've played this game with them and even had a second letter identical to the first saying the form I used was incorrect and to review the AMA process on VAF 21-0998 to select the right one. At that point, I call up my CMA and ask her to fix it. 

As I pointed out, you can't ever go wrong by filing both forms and letting them play Phonics and sounding it out. 

Bon chance.

[8th&IMarine]

On 8/12/2021 at 6:12 AM, pwrslm said:

If they should have included AA consideration in the orig claim decision, would it be easier and quicker to file a supplementary claim citing evidence contained in the orig med file? If the VA should have eval the issue based on existing information in records contained w/in the SM's med file, and did not, the supplementary claim should prompt the examination and be quicker, no? 

The statement from spouse can be considered new/material evidence (that the RO should have solicited in the orig claim).

 

On 8/11/2021 at 3:28 PM, asknod said:

If you could see your rating decision "Code sheet", it lists your ratings history, the Diagnostic Codes used and the history of each in increases with chronological dates.

I found it in my C-file. Now I understand what you say about combined vs schedular. Of course this was posted before they granted TDIU so it wasn't in my C-file at the time I requested it:

0% from O 1/04/2007 
20% from 04/30/2007 (Bilateral factor of 1.9 Percent for diagnostic codes 5251, 5010) 
30% from 04/04/2011 (Bilateral factor of2.7 Percent for diagnostic codes 5024, 5251, 5010) 
50% from 10/30/2012 (Bilateral factor of 4.1 Percent for diagnostic codes 5024, 5251, 5010, 8526, 8526) 
90% from 07/11/2017 (Bilateral factor of 4.1 Percent for diagnostic codes 5024, 5251, 5010, 8526, 8526)

100% from 11/07/2017 (Bilateral factor of 3 .4 Percent for diagnostic codes 5024, 5010, 8526, 8526) 
100% from 02/07/2018 (Bilateral factor of 5 .3 Percent for diagnostic codes 5024, 5010, 8520, 8520, 8526)

100% from 01/01/2019 (Bilateral factor of7.7 Percent for diagnostic codes 5024, 5054, 5010, 8520, 8520, 8526) 
100% from 08/22/2019 (Bilateral factor of7.4 Percent for diagnostic codes 5024, 5054, 5010, 8520, 8520) 

SPECIAL MONTHLY COMPENSATION: 
S-1 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of degenerative joint disease left hip, s/p total hip replacement rated 100 percent and additional service­connected disabilities of residuals of a left ankle injury, surgical scar, left hip, lumbar spine degenerative disease (claimed as low back condition), major depressive disorder, left lower extremity radiculopathy, degenerative joint disease right hip, independently ratable at 60 percent or more from 11/07/2017 to
01/01/2019.

 

I think I may file both forms as you mentioned. I'm going solely for SMC-L based on need for aid and attendance. The help I require is shoes, socks, washing feet, and toenails. Hoping that's enough. Guess my biggest fear of filing is that upon the exam, the VA thinking somehow that I have improved even though I haven't. Some of these C&P examiners seem to write whatever they want and they fill in the blanks long after you've left the building. Don't know if that could happen with a permanent status. I guess my mistrust comes from a long battle of more than a decade of appeals and exams. But hey, it's the VA!

[8th&IMarine]

On 8/12/2021 at 6:12 AM, pwrslm said:

 The statement from spouse can be considered new/material evidence (that the RO should have solicited in the orig claim).

Yes, I would think it would be material, but I'm thinking now this has to be a new claim as the time for submitting evidence or appealing is long gone. I'll still attach her statement with the claim though. Thanks for the response!

[FormerMember]

Always remember, SMC is an ancillary entitlement based not on an actual claim but your medical/physical condition. If it is due and owing, VA is required to award it automatically. There is no "one year" to appeal a denial. Once you prove your entitlement to it, it's due and owing back to the day your medical records show it was due, never the day that your c&p doctor signed the magic 2680. Seems I end up appealing every one of my SMC wins to fix an error like §3.350(f)(3)(4). 

I doubt VA will ever understand SMC. It (SMC) doesn't follow ratings rules. Worse, VSOs look at you when you ask to file and dang near every one of them will say "What? Who told you that horse pucky? The highest you can get is 100% or TDIU. That's it. There's no more money to be had." When you say what about SMC? they hem and haw and say things like "Yeah, but you have to be almost dead or in a wheelchair before you can file for that." 

[Mr cue]

Not trying to mix up your post ?

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).

I been trying to find out if public law is binding on va.

it seem to me that if a veteran needs in home care provide by a company.

they should get smc r.

 

[8th&IMarine]

Well, I messaged my PCP at the VA about an appointment to fill out my 2680 and I'm in shock. She agreed and scheduled me for this month! Every other time I've so much as hinted for a VA doc to make sure they mention something in their notes pertaining to my abilities or disabilities, I've been completely ignored.  I've always assumed they want nothing to do with opinions when it comes to the claims side of the VA. I'm also assuming this shouldn't be as "thorough" as a C&P exam and that my doctor will actually pay attention during the exam 

[8th&IMarine]

On 8/20/2021 at 2:40 AM, Mr cue said:

Not trying to mix up your post ?

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).

I been trying to find out if public law is binding on va.

it seem to me that if a veteran needs in home care provide by a company.

they should get smc r.

 

Yes but "R" requires qualifying for "O or N1/2" plus "K".  That's why I'm asking for "L" under the simple grounds that I require aid and attendance. Requirements are much less stringent, or so it seems.

[Mr cue]

Well the way I read it is pl law change it that veterans don't need the o to get smc r.

That n k o stuff is over but va is denied veterans. Base on this still.

You still have to be receiving in home care provide by a company.

And a doctor statement that without in home care you will need nursing home services.

That the way I read it.

 

[FormerMember]

Here's a good link to understand some of the changes to SMC most recently. 

https://department-of-veteran-affairs-warms.fandom.com/wiki/Section_H_-_Special_Monthly_Compensation_(SMC)_-_Updated_12/16/11

See also  68 FR 55467, Sept. 26, 2003; 74 FR 11483, Mar. 18, 2009; 83 FR 20736, May 8, 2018]

I believe what the misunderstanding here revolves around was the creation of SMC at the "T" rate. SMC T is for exceptional TBI disabilities. Many Vets who got clobbered by an IED have extensive neurocognitive disabilities which, by themselves, would only result in a SMC of L. There would be no path via regulation or statute to allow them to advance the normal way to R1 or R2(if there is any way to advance normally). 

You do not need to obtain a SMC rating at the "O" rate to get T. Here's the regulation (§3.350(j):

(j) Special aid and attendance benefit for residuals of traumatic brain injury (38 U.S.C. 1114(t)). The special monthly compensation provided by 38 U.S.C. 1114(t) is payable to a veteran who, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under 38 U.S.C. 1114(r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. Determination of this need is subject to the criteria of § 3.352.

(1) A veteran described in this paragraph (j) shall be entitled to the amount equal to the compensation authorized under 38 U.S.C. 1114(o) or the maximum rate authorized under 38 U.S.C. 1114(p) and, in addition to such compensation, a monthly allowance equal to the rate described in 38 U.S.C. 1114(r)(2) during periods he or she is not hospitalized at United States Government expense. (See § 3.552(b)(2) as to continuance following admission for hospitalization.)

(2) An allowance authorized under 38 U.S.C. 1114(t) shall be paid in lieu of any allowance authorized by 38 U.S.C. 1114(r)(1).

I do agree w/ Mr. CUE that SMC T should be awarded in extreme cases. Supervised in-home care in conjunction with the need for hospitalization in the absence of A&A is the gold standard to get to T. Well, in addition to a confirmed dx of mega-TBI.  Of course public law is binding on VA. Public law is Congress' statutes-i.e. 38 USC Title 38. Why on earth wouldn't it be applicable to VA? VA serves at the behest of Congress even though it seems the reverse is the case in most instances.

If you're still confused, review §4.124a and how they((VA) apply the criteria scale for degree of neurocognitive disability. 

Edited September 3, 2021 by asknod (see edit history)

[Mr cue]

Ok i got it now smc t is the only one which this pl law apply for.

 

 

[Mr cue]

Thank you  for that link. It's great.

 

 

 

 

[8th&IMarine]

OK, so I have my VA appt with my PCP to do my 21-2680 tomorrow. (Note: I still have not filed for aid/attendance, was hoping to see what she put on the form first) The VA just called and said it would be a PHONE appointment. How in the world can a doctor assess my need for aid and attendance or my ADL abilities over the phone? There reasoning is due to Covid, I guess, but still doesn't make any sense. I was hoping to use her form to speed up the process so I wouldn't have to go through another exam after I file. Gotta laugh at the system in these times, I guess.

[8th&IMarine]

Straightforward question - Can I file for SMC online or do I need to mail my form and other docs? If I file online, it appears I'm opening a new claim. Also, I know the VA is supposed to look at SMC eligibility when they determine your other claims. Because this was not done, if they do award it to me would it be retroactive?

My phone exam went well, I believe. My PCP wanted to mail my form directly to the Regional Office, but I told her to just mail it to me as they wouldn't have a claim yet. Hope I made the right decision.