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? 

[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

[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.