Aid and attendance 3.352(a) and 3.352(b)

[Lonniebrinson]

I recently file for basic regular aid and attendance 3.352(a) but was denied for a higher level of aid and attendance under 3.352(b).  I do meet the criteria for aid and attendance under 3.352(a). The decision letter stated I don't meet the criteria for higher level of aid and attendance. Do any one have any idea why the va did not rate me under 3.352(a) . Here my disabilities Smc-L loss of use of both feet

100% Bowel incontinence

60% urine incontinence

60% IVDS

50% PTSD

30% painful scars

 

 

Edited October 16, 2021 by Lonniebrinson (see edit history)

[broncovet]

A friend of mine told me, regarding the FAA,  that

"The FAA is not happy until you are not happy".  

The VA is the same way, they are not happy unless we are miserable.  Why do they deny us?  To make us miserable and to wait from 18 months to 10 plus years in appeals, hoping we die or give up before our appeals are done.  

If you fail to appeal, give up, or quit, the VA wins.  Dont let em win.  

You need to appeal if you think you meet the criteria.  File a NOD, I recommend BVA, not HLR or SCL.  

[john999]

VA knows that if they drag out the compensation process most will just give up and go away.  Only the most disabled and determined will keep going until they prevail.  I have been a claimant since 1972.  You talk about gradual.  I started at ten percent and went to 30% then 70% then TDIU and then P&T.  After that I got an extra 60% and got "S".  Now I finally got 100% schedular in my old age.

[Marine Corp 69/70]

Lonniebrinson.   You need to go to (blogtakeradio.com/jbasser and listen to this podcast that he has, a new one every Thursday night at 7 PM you can check out his pass podcast he go throw the VA’s aid & attendance and brings out all the pitfalls the VA does to veterans and show you how to overcome them with guests he has on the shows.

[FormerMember]

<<<I recently file for basic regular aid and attendance 3.352(a) but was denied for a higher level of aid and attendance under 3.352(b). >>>

Let's analyze this, Mr. Brinson. There are two different levels of Aid and Attendance as you note. Regular A&A is awarded under the aegis of §3.350(b)(3) and the criteria for qualifying is described in §3.352(a). Actually there are three "types" of A&A. VA considers SMC S to be an inferior version of A&A which it is not. It's Housebound. 

From the above and the prior thread, it sounds like you feel you should be awarded R 2 automatically without climbing the SMC ladder to get there. §3.352(b) describes the criteria for entitlement to the higher level of A&A known as SMC R 2 which is described in §3.350(h).

First, let's clear the air on A&A at any level as it applies to your case. You have a rating for LOU (loss of use) of your lower extremities which entitles you to one SMC L under §3.350(b)(1). A careful reading of §3.350(e)(1)(ii) describes the requirements to first attain SMC at the O rate. It informs us that we need two (2) awards of SMC at the rates between L and N or a single rating of SMC N 1/2 plus a K rating to reach SMC O. You have one rating of SMC L and seek a second SMC rating of L for A&A. As §3.350(e)(1)(ii) states in no uncertain terms,  a second award of a rating between L and N must be independently ratable apart from your current award of LOU of your lower extremities. In simple terms, it means you are forbidden from claiming a need for A&A due to your loss of use of your legs. That would be pyramiding.

You can claim, and I would, that your 100% rating for incontinence is separate and distinguishable from your loss of use of your lower extremities. By operation of law, VA cannot combine your incontinence with a LOU of anything unless it involves paraplegia under §3.350(e)(2). We discussed this in a prior thread on this subject several weeks ago. You indicated then that your incontinence was not a result of the LOU of your extremities.

The catch on obtaining entitlement to the "higher level of A&A" (R 2) as described in §3.352(b) is simple. As I described in §3.350(h) above, you need to have two ratings between SMCs L and N to get to SMC O. Having a rating of SMC N 1/2 plus K will not get you to R 1-just to SMC O.  Once you obtain what VA refers to as the "maximum rate" of SMC O, if one of your two SMCs between L and N includes A&A at the regular A&A rate (§3.350(b)3)), then and only then are you "promoted" to R 1. You cannot get there any other way. You cannot simply say you need the higher level of A&A under R 2 or that the sum of your disabilities argues in your favor. Once you reach SMC O, entitlement to the higher rates begins. There is no way to "jump" from SMC L to R 1 or R 2.

To attain R 1, you will need two things essentially. The first is that you have been awarded the SMC O rate. You have not been awarded SMC O yet.  Test #2 is that you need one of your two SMC rates that get you to SMC O between L and N to be the regular A&A awarded under §3.350(b)3) and §3.352(a). You do not have this yet either.  If you had these two SMC rates, this would only entitle you to R 1. At that point, you would need to qualify further for R 2. 

In order to move up from R 1 to the "higher level of A&A" or R 2, you would need to fulfill all these requirements in §3.352(b)(3):

(3) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof.

(4) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(3) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice.

(5) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional.

(6) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial.

(c) Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.

Where many Vets run afoul of R 2's provisions is overlooking §3.352(b)(1)(iii):

(iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.

I win the vast majority of my clients' R 2 claims by showing some things that most would overlook. Note the discussion in §3.352(b) about what constitutes the meaning of "personal health-care services". I frequently rely on the physical therapy codicil. If my client doesn't employ a personal health care service for the client's physical therapy, I have them hire one. As long as they are under the supervision of a doctor or the equivalent, it meets the  R 2 requirement. One spouse met this by taking her husband to the local community pool in her neighborhood several times a week and swimming with him to increase his muscle tone. Because she began doing this in 2015, The BVA Judge awarded the R 2 back to 2015. If you begin the physical therapy route tomorrow morning, that will be the effective date of R 2 absent any other considerations.

So, in summary, Mr. Brinson, you could prove A&A is in order due to your inability to attend to the wants of nature to qualify. Just being able to to get to the water closet doesn't mean you can transfer without the A&A of another. Remember  always, you do not need to meet each and every requirement listed in §3.352(a). One deficiency in the activities of everyday living will do. If you have a nasty case of PTSD or TBI, you can also cite to that saying you need to be protected from hazards or dangers incident to your daily environment. What if there was a fire? Would you be able to escape without the help of another? You cannot use the argument that if you fall out of a wheelchair that you would not be able to regain your seat without the help of another. That is considered part of the loss of use and would be pyramiding.

To most easily grasp the idea of what I'm attempting to impart, try reading Breniser v. Shinseki.  Breniser explains "condition" as used in §3.350(b). There are essentially 4 conditions which will get you to R 1 or R 2. I also use the two A&As technique wherever applicable. It will require the baseline requirement of the disability in question (incontinence) being rated at the full schedular rate of 100%. You meet that requirement so the next question is probably "Why did they deny my SMC L for A&A"? Simple. It would lead to O and R 1 and they are not inclined to grant that without a pitched battle. You can win this yourself but it will require going to the BVA on appeal because no one at your Local Fort Fumble wants that on their resume. And secondly, no one at the local level probably even has the intelligence to even know  you can do it legally.

Best of luck.

 

Edited October 17, 2021 by asknod (see edit history)