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Higher level aid and attendance

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Lonniebrinson

Question

I recently filed for aid and attendance. I was denied because the va said I do not meet the criteria for higher level of aid and attendance which will be (SMC-R2). Here's the problem I filed for basic  aid and attendance under 38 cfr 3.352(a) ( SMC-L). Do anyone have any idea why the va overlooked the basic level of aid and attendance ?

My current rating is SMC-P2. 

SMC-L loss of use of both feet

100% bowel incontinence

60% urine incontinence

60% IVDS

50% PTSD

 

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<<<<If there is a clear and unmistakable error (CUE), do not state so in this round, but instead detail the error step by step referencing M21/CFR/USC so that there is no question about what you state is true. CUE can only be claimed once, so instead of doing it up front, leave it for appeals. >>>>>>>

Please be careful when handing out advice. Whoever said that clear and unmistakable error can only be claimed once is incorrect. §3.105 and its corollary in §20.1400-14.03 (and the federal courts) do not explicitly forbid filing a CUE more than once-as long as it is based on a different factual basis for the allegation of the alleged error. Please remember that each of you who offers advice is a Hadit "ambassador" and your advice can either help or harm a Veteran's claim. I'm sure everyone has a "pet" theory about how they would accomplish any given denial but in 30 years, I've discovered one truth-every claim is distinguishable and has unique fact patterns unlike any other Veteran's. Based on that, each claim has to be treated as one that has never been encountered. There simply is no such thing as a template for a VA claim. Trying to do it long distance looking through a pair of binoculars without the claims file in front of you is a fool's errand.

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CUE WARNING:

A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney...  Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice."  Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c).  A claimant, thus, has only one chance to file a CUE claim on a prior decision.  Id.

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

Edited by pwrslm
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<<<I believe a CUE can be claimed any time on appeal. SMC is just like any other claim. Once it is denied, and the claim is closed, if an error is discovered then it can be reopened any time and corrected.>>>

Well, now. Here we have a possible problem in wordsmithing. Believing a CUE can be claimed "any time on appeal" is a wide open statement. Yes and no.  Remember, we live in the AMA world now. Each contention (read claim) is a stand alone item. If you list on your VA form 10182 that you should be awarded a higher SMC rate than the one they gave you, that is an appeal based on case or controversy. The 'case' is case law-i.e., what does  the regulation (§3.350) and statute (§1114) say? Does either support your contention? The 'controversy' is over what you are rated at now and your contention as to what higher SMC rate you feel you deserve based on your subset of disabilities.

Let's say they give you SMC L A&A and you have an independently ratable 100% condition as well. They automatically will go to §3.350(f)(4) in most cases if they even catch it at all. So, you end up with an M (SMC P). But under Buie precedence, they are required by law  to maximize it under §3.103(a) without any prodding. You feel you should get a separate aid and attendance for your other 100% rating so you file an appeal. If the VLJ agrees, you'll get SMC O and the bump up to R1 and, if you're really hamburger helper-maybe even R2. Depends on the circumstances but that (r2) isn't germane in this discussion.

If I understand this correctly, Mr. PWRSLM  suggests that if one gets a supplemental rating denial for SMC L through N, s/he can suddenly allege CUE in the 10182 raising CUE for the first time on appeal. Wrong. You cannot raise CUE above unless it's been denied  and now on appeal. Read the next paragraph as to why you cannot. But as Mr. CUE pointed out, why would anyone choose to fight VA with one hand and one leg tied behind their back? Remember what you lose- no benefit of the doubt. No introduction of new and relevant evidence. And the error has to manifestly change the outcome. It doesn't have to be that hard. SMC is a unique kind of law exempt from statutory time constraints to appeal. First, you do not need to file a claim for it- or you shouldn't have to by law. Secondly, You can claim entitlement to it back to 19__ without resorting to using CUE-again, by operation of law.

What you cannot do in AMA is allege CUE while on appeal where you are arguing case or controversy under §3.350(e) . CUE is a separate matter under §3.105 based on error. With SMC, there is no "expiration date" or suspense date. SMC is due and owing at any time the medical evidence supports it- even if it is in your record from 2002. Just because VA disremembered to give you SMC L through N or R1/2 when you were entitled to it doesn't mean you have to file CUE. You just file a 526 or a 995 and say "Looky here. You owe me." VA will, of course, say ''no we don't''. You file the appeal, sit back and watch General Hospital or whatever for a couple of years. 

If you insinuate CUE occurred in the supplemental claim on appeal or in the body of your legal brief on appeal, the VLJ will note it in the decision and inform you or your representative that s/he is remanding the CUE matter back to the AOJ (Agency of Original Jurisdiction) for proper development (and filing) in the first instance. The AMA is structured so that each adjudication is compartmentalized. If you disagree with the SMC rating, your path diverges into three choices. 1)You can refile a new 995 "clearing up" the controversy. 2)You can ask for a HLR or 3) you can file a NOD (the 10182 we now consider the appeal mode rather than a VA 9). Or, I suppose if you prefer to choose the path less-traveled and more arduous, you can claim CUE. What you cannot do is belatedly raise an allegation of CUE during the pendency of the 10182 on appeal about how you got shafted below in Omaha. For that, if you wish to, you can actually do two things. In this crazy upside down world of AMA, you can file a CUE over it at Omaha while at the same time filing the 10182 NOD to the Board based on case and controversy. Personally, I disagree with how this AMA thing works. I liked the old Legacy system far better. It's merely an assembly line denial process now and so much for the 125-day adjudications they promised us in 2015. 

For the record, I dissent as to anyone's belief that SMC is 'just like any other claim'. That's just my personal belief based on my own experiences. Best of luck to all of you fighting for the higher rates. 

Edited by asknod
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