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SMC-L Aid/Attendance Question


8th&IMarine

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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? 

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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 by pwrslm
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  • HadIt.com Elder
Posted (edited)
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 by asknod
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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 🙂

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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. 

code sheet 1.PNG

code sheet 2.PNG

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