On-Line SMC-l claim question

[8th&IMarine]

I filed my 21-2680 aid/attendance form filled out by my PCP at the VA.I also submitted parts of my VA records that I thought would apply to my claim for aid/attendance. I just noticed that under  "What You've Claimed" on-line it says the following:

What you’ve claimed

• SMC - L Aid and Attendance (New)
• degenerative arthritis
• left hip (Increase)
• lumbar spine degenerative disease (Increase)
• plantar fasciitis
• right foot (Increase)
• right lower extremity radiculopathy (claimed as neuritis or radiculopathy bilateral legs/toes) (Increase)

All I claimed is the SMC. It is listing most of my s/c disabilities and looks like I am filing for increases. All of those are already adjudicated nd I am at 100% schedular/permaent and have been for a few years.  Are they trying to redo all my settled disabilities because I am claiming aid and attendance??

[Mr cue]

They did the same thing to me.

But I put in a statement withdrawing the increases before they even started all the games.

And put that I am only applying for smc benfits.

I mail it cretifed and fax it.

Don't let them play that game good luck

[pwrslm]

Sometimes I get to thinking that these guys were trained by the same person. They all make the same mistakes. The new C&Ps they said YOU requested are not necessary for A&A. The key to this may be that they have to figure out if any of these conditions worsened to justify the increase/addition to A&A.

The RO has no right to say you requested increases on all of your rated conditions. I would raise a stink about that. The IG dinged the VBA about unnecessary C&P exams. VA IG said bogus C&P exams would cost the VA $100 million over 5 years. Start tossing in the VA IG report from 2018 and screaming about wasted tax dollars and see how fast they respond. I did this by getting a supervisor on the 800 line. It worked. If the C&P is to determine which of your conditions are severe enough to cause the necessity for A&A, then you will have your answer. If not, they will cancel them.

 

Alternatively, if the increase is documented in VA medical records, the C&P exams truly are unnecessary. The VA should use acceptable clinical evidence (ACE) already at hand to make this decision if it exists.

 

 

Edited November 11, 2021 by pwrslm (see edit history)

[broncovet]

Im gonna dissent here.  I dont think so. 

You see, if the VEteran applies for benefits, the VA abides by regulations, even when those regs are in conflict with what the Veteran says. 

If you want 100 percent for your toenail, the VA isnt gonna give that to you, because regulations do not support your position.   The regulations have priority over the Veterans wants.  

Time after time, in the past, Vets have made mistakes such as filing for TDIU and "NOT" filing for the underlying conditions which make up TDIU.  

The VA is required to maximize your benefits.  

In the above example, it could make you eligible for SMC S, if you were awarded PTSD (100 percent) and some of the other stuff was increased to combine for 60 percent, making you eligible for SMC S.  So, the result was, by the VA changing your application for tdiu to increase of everything, you wind up with SMC 

S in addition to 100 percent.  

Its my opinion, that this is a "problem" with the defination of "claim".  Does a "claim" mean you applied for SMC L, or a "claim" for an increase?  

If you apply for 3 things, do you have 3 claims, or one claim with 3 issues?  

No one seems to know if a "claim" means "one or more issues", or if it means "a separate claim".  

The VA is supposed to interpet it "in your favor".  In other words, did you apply for SMC L, or did you apply for an increase to include SMC L?  

Since you obviously have problems with your legs and feet, maybe you are actually eligible for "higher" level of SMC than L, because you  COULD also have loss of use of your foot (feet).  

I would not worry about it, and dont recommend whining that VA is trying to give you more than you asked for.  If you are not eligible for loss of use of your feet..well thats okay.  

You wont be complaining if VA awards you SMC L plus more SMC for Loss of use of one or more feet.  

Dont limit your own benefits and be your own adversary.  

 

 

Edited November 11, 2021 by broncovet (see edit history)

[broncovet]

I have a family member who did just that:  

Quote

He limited his benefits and was his own adversary.

He was an Afghanstan Vet, and got a purple heart when a bomb went off near him and he took shrapnel in his head and feet.  But, he refused to apply for PTSD or TBI, reasoning that his guns could be taken away from him if the VA ruled he had a mental health disorder.  (Its not true, by the way).  

So he gets 80 percent (when he should be 100 percent), and gets about 1700 per month instead of about 3200.  I say he does this BECAUSE of his PTSD.  He is paranoid and thinks the government is out to get him.  

Someone said, "is it paranoia" if you think the government is out to get you and they really are out to get you?  

[pwrslm]

There is a difference between advocating against your own benefits and holding the VA's feet to the fire. They should be able to articulate why they want these exams. The fact that they said the Veteran requested them is a lie. Lies should not be tolerated from any government employee. Period.

Like I said from the start, the key to this may be that they have to figure out if any of these conditions worsened to justify the increase/addition to A&A. But initiating exams on every condition that the Vet has SC is a waste of both time and tax dollars and should be stopped in its tracks. If we get along to go along, it will never change. If we hold their feet to the fire, they will eventually comply with IG recommendations and federal law.

Edited November 11, 2021 by pwrslm (see edit history)

[Mr cue]

I have to disagree the va is to follow the law.

Many times they don't and if you sit there they will play games.

Applying for smc is not a increase rating..

Smc is effective by your and granted by the record.

There are two different laws for smc and increase rating.

 

Why would a veteran allow them to play with all his rating when they never apply for a increase.

We all no what is coming a reduction.

Like I said I would write a statement withdrawing all the increases.

And stated you are only applying for smc benfits.

Mail and upload it.

Before they start all those exams.

 

[broncovet]

The law is the VA is to maximize the Veterans benefits!  

Again, the OP has issues with his leg(s), and "loss of use of his leg(s) has not been ruled out".  Therefore, in maximizing the Vets benefits, he could be eligible for additional compensation, so the VA rater did his job.  

Its explained here:

Quote

The VA’s Duty to Maximize a Veteran’s Benefit

By regulation, the VA has a duty to grant “every benefit that can be supported in law.”[1]  However, the same regulation also states, in the same sentence, that the VA must also protect the interests of the Government.[2]  This competing interest necessitated the courts to continually refine the VA’s duty to maximize a Veteran’s benefits.  As it stands so far, this duty is robust and even includes inferring claims for individual unemployability (“TDIU”) and special monthly compensation.

The VA must assume that the claimant is always seeking the maximum benefit allowed under law.[3]  This includes assigning the most favorable diagnostic code (“DC”) if more than one equally applies.  In Vogan v. Shinseki, the Court held that the failure of the Board of Veterans Appeals (“BVA”) to consider any other DC under which the Veteran may be entitled to additional benefits establishes prejudice.[4]  This especially comes into play when the VA is rating by analogy.  For example, when rating for an undiagnosed illness due to presumptive service connection for qualifying Persian Gulf War veterans, there will be no precise DC for the undiagnosed condition – this is because the rating tables only list conditions with diagnoses.  The VA must look for a closely related injury or illness, preferably one that affects similar functions in similar body parts and have similar symptoms.[5]  To show that the VA is considering the highest rating within any given DC, in its decision the VA must discuss the next highest rating and why the current rating is the most appropriate.

This duty to maximize goes hand in hand with the VA’s duty to give the benefit of the doubt.  The benefit of the doubt doctrine, codified in 38 C.F.R. §§ 3.102 and 4.3, states “[w]hen, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.”[6]  This is an effective tool to include when arguing that a higher rating within the same DC should be applied, or when a more advantageous DC should be applied.

Although the VA has a special form for claiming TDIU (VA Form 21-8940), and the VA is allowed to “require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises,”[7] the courts have held that the VA must consider TDIU when the Veteran raises his inability to work but does not file a TDIU application form.[8]  This is mostly due to the fact that TDIU is not a free-standing claim but rather “an attempt to obtain an appropriate rating for a disability or disabilities.”[9]  The VA must consider a claim for TDIU whenever a Veteran raises in an original claim or a claim for increased benefits that he or she is unemployable.[10]

Two major limits on the VA’s ability to maximize benefits are the rule against pyramiding and the amputation rule.  The rule against pyramiding, codified in 38 C.F.R. § 4.14, prevents the same manifestation of the same disability from being rated under different diagnoses.  The courts have held that “the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity.”[11]  This does not mean that multiple ratings cannot stem from the same injury or out of the same region of the body, it simply means that a Veteran cannot be rated for the same precise manifestation more than once.  For example, a Veteran cannot be rated at a higher rating under PTSD for sleeplessness and get rated at an extra-schedular increase under Tinnitus for the same sleeplessness.  This would result in the Veteran receiving compensation twice for the same sleeplessness.  However, a Veteran can get rated separately for cosmetic disfigurement, pain, and muscle damage stemming from the same facial scar resulting from the same automobile accident.[12]  In Esteban, the court held that the single accident resulting in a large facial scar had given the Veteran three distinct disabling conditions: cosmetic damage, pain, and limitation of function.[13]  Another limit the VA has on maximizing benefits is the amputation rule, which states that “[t]he combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed.”[14]  The example given in 38 C.F.R. § 4.68 states that the combined ratings for all disabilities below a Veterans specific knee cannot exceed what the rating would be if that specific leg was amputated below that same knee.  This is because if the VA decides a leg below the knee is only worth a certain rating in its entirety, any combination of disabilities of the leg below the knee cannot be worth more than the entire leg below the knee.

It is rare for the VA to automatically maximize a Veteran’s benefits as much as they are required to, so it is important for Veterans and their representatives to know these duties and hold the VA to them.

[1] 38 C.F.R. § 3.103(a).

[2] Id.

[3] AB v. Brown, 6 Vet. App. 35 (1993).

[4] Vogan v. Shinseki, 24 Vet. App. 159, 164 (2010).

[5] See Tropf v. Nicholson, 20 Vet. App. 317 (2006).

[6] 38 C.F.R. § 3.120 (emphasis added).

[7] Standard Claims and Appeals Forms, 79 Fed Reg. 186, 57660 (Sep. 25, 2014) (to be codified at 38 C.F.R. pt. 3, 19, and 20).

[8] Collier v. Derwinski, 2 Vet. App. 247, 251 (1992).

[9] Rice v. Shinseki, 22 Vet. App. 447 (2009).

[10] Collier, 2 Vet. App. at 251.

[11] Brady v. Brown, 4 Vet. App. 203, 206 (1993).

[12] Esteban v. Brown, 6 Vet. App. 259 (1994).

[13] Id. 6 Vet. App. at 262.

[14] 38 C.F.R. § 4.68.

Source:  https://www.grimesandteich.com/the-vas-duty-to-maximize-a-veterans-benefit/

 

[Mr cue]

Like I said there are two different rule for smc benfits and comp benfits.

That why there two different sections in the law and cfr.

Yes the va is to infer Smc when you apply for a increase or the record show.

But if a veteran apply for smc it is not to be treated as a increase rating claim.

That is what the va is doing to the veteran in my opinion.

I hope the poster withdraw the increase claims.

Don't take the chance in my opinion

He doesn't seem to be look for a rating increase he is looking for smc benfits.

That he feel should of been inferr when his last rating was done.

That how I would do it and my advice on this

 

[broncovet]

I dont recommend withdrawal of claims.  You posted:

Quote

Don't take the chance in my opinion

Dont take a chance on what?  Being awarded additional SMC?  

Oh, maybe you are in that group of people who (incorrectly) believe that if one applies for an increase, they will be decreased, instead.  That myth is not supported by regulations, especially: 

https://www.law.cornell.edu/cfr/text/38/3.344

Instead, you can only be reduced (decreased) if you meet the applicable criteria, which basically means your condition "actually improved under ordinary conditions of life".  

We can assume the VA complies with its own regulations "even tho" we know they do not.

But, when they dont comply with their own regulations, THEN we can hold their feet to the fire.  

Its somewhat true there are different rules for SMC then for regular percentage benfits, but its also true they share in many of the same regulations.  They are actually more similar than they are different.  

One big difference..that you alluded to..is that the effective date of SMC is not dependent on the date filed, but rather, when you first meet the criteria.  

While there is a section of regulations on "just" SMC....this does not mean the other regulation do not apply in their entirety.  

[Mr cue]

Well we all have are opinion.

I stated mines its up to the veteran to choose his or her way to navigate the va system.

Now what make me feel some type of way is that u keep stating the va follow there regs.

And I think we all no that not to be true.

Last what increase in smc is he getting by them treating it as and increase for all his disability.

Any one can see what they are about to do maybe not u.

Last you no that make no sense to have two sections if they fall under the same rules right.

Smc is a auxillary benfits not the same.

[FormerMember]

A lot of ideas, a lot of conjecture and a lot of suggestions. Let's look at VA's more recent views on SMC.

First, for the higher rates (SMC L and above), the M 21 has tried desperately to conjure up a requirement for a 100% or TDIU rating as the entry ticket to even be considered for the SMC. So, in this case, The Veteran (8th&IMarine) is applying for a&a. A&A doesn't require a 100%/TDIU rating to enter the lottery. Look at §3.151(c)(3):

(c) Aid and attendance; criteria. The veteran, spouse, surviving spouse or parent will be considered in need of regular aid and attendance if he or she:

(1) Is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or

(2) Is a patient in a nursing home because of [SC] mental or physical incapacity; or

(3) Establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a).

(Authority: 38 U.S.C. 1502(b))

 

A Veteran can always go for the extraschedular path to get there, too. But let's look at what we have here.

8&IMarine seeks a SMC L for a&a. He has to prove he cannot accomplish one or more of the activities of everyday living listed in §3.352(a). VA, by operation of law, is going to investigate what particular disability(ies) are responsible for the A&A. S/he is asking VA to determine if s/he is eligible. Akles v. Derwinski and its progeny demand they investigate any and all of his/her SC stuff to determine if they can grant more than just the A&A (or deny). This is open and shut "inferring" a claim for increases that should be rated. Maybe not. A good 2680 ( the eleven page, inward-facing VA DBQ) would be essential here if completed by your private physician. In any case, as BroncoVet points out, it's a §3.103(a) argument-by law they have to maximize your rating. They don't.

 

What I encounter nowadays is an "everything but the kitchen sink" mentality. VA can (and will) say you need a&a for all those disabilities. So, what happens if you get worse on one of the musculoskeletal issues later-like up to 100% worse? You file for a&a for that one separately and VA says ''sorry charlie-you're using that for the #1 a&a. That would be pyramiding''. I spend an inordinate amount of time trying to de-link these things and get a separate 100% disability rated under SMC L. I always end up at the BVA, too.

 

Say you went the 100% + 60% and got your SMC S. If you file for a&a and they grant, $100 says they throw all your SMC S stuff into the a&a and deny you any 1/2 step bumps under §3.350(f)(3) or a full step bump under (f)(4) for a 100% rating separate and distinct from the a&a. By law, they can't call something separate and distinct  and independently ratable in 2017 and then come back in 2021 and say it's all one disease/injury process. VA does this to head you off at the pass in the future. They sure don't want you scheming to get R1 if they can cram it all into one a&a rating now. And, it's illegal too.

 

My advice, for what it might be worth, is to let this ride and see what they develop. You can always NOD and say you never filed for the claims-ergo they are void ab initio. If you file for a&a, try to be specific in your request ("My arthritis makes it impossible to button my shirts or tie my shoelaces." or" My PTSD causes me to forget to take my medications.") If you do not, you'll get the kitchen sink treatment. When, and if, your PTSD does get rated at 100%, you'll want to be filing for a&a for that alone later. You don't want it inextricably intertwined as one of the partial ingredients for the kitchen sink grant of a&a in the present claim.

Since the claim is open currently, you could submit a 4138 or the newer 21-10210 version and testify your a&a need is based strictly on your SC  ______________. Get your PCP to write up the 2680 focusing strictly on the disability that provokes the need for a&a.

 

A lot of Vets do not get this. Filing two A&As is not pyramiding. It's two separate paths to get there (r1) and both are legal. So what if your need for a&a because of your PTSD appears to duplicate your need for a&a due to your Parkinson's? This is the anomaly of SMC. It permits pyramiding primarily because its a quality of life issue, not a ratings percentage of disability. If you have two totally disabling illnesses/injuries, each separately is a qualifier for a&a. Always think big. Do not confine your SMC thinking to the four corners of §3.350(b)(1-4). 

 

Happy Veterans Day. 

Edited November 11, 2021 by asknod (see edit history)

[Mr cue]

As always asknod has made my day.

I like the part that the increases could be void later because he didn't apply for an increase.

So yes I might let them flow.

I am a little against fight something with the va now. But they could be void after a fight so that a veteran choose to me.

I  personally ain't taking chances of the reduction and than that one more fight.

And with no contact to bva anymore and these private contract comp exam I pass

I would withdraw them now and make the statement. I want a decision based only on smc benfits and I am going to let them no before any funny stuff.

 

Just My opinion.

 

Now in my case I was granted smc l and yes they are trying to say my smc l is for all my disabilities.

But I apply for depression at the same time grant 70%. Even give a aid attendance comp exam for it

They  shifted my 25 year tdiu to the depression. And granted 3 months of smc s with the smc l

The crazy part stated on the board decision they can't Granted the depression total because I didn't appeal it.

 

Well I fought alway to the court  to get them to address the smc l for the depression. And the smc o and r

My in home care notes and plan states  help remember meds. Socializing and stop harm to self.

This would give the smc l  for the depression if I am reading right.

Which give the o and with me have in home care provide by a company gives the smc r1 or 2

Well the court remand smc o and r to be addressed by the board. January 30 2021. And reverse the decision on the depression.

I been in a fighting like crazy to get this all back on track at the board it's crazy

I still can't get them to address it.

But now I really no it possible now and asknod just lay it out for me.

And understand why all the games.

The fight continues.

And good luck to the poster.

 

 

[pwrslm]

12 hours ago, broncovet said:

The law is the VA is to maximize the Veterans benefits!  

The law gives no instructions to any Government employee that they should lie. With out a proper explanation, and a documentation to justify the work they do based on the law, then the C&P exam is improper.

[john999]

Due to my mental and physical I really do forget to take my blood pressure meds since I have five of them and take some 3 times a day.   Do I need to file for SMC since I forget to take DMII and HBP meds?  I really get what Asknod is saying he is the expert on SMC.  I got two SMC's already but in order to pay bills I need more.

[8th&IMarine]

On 11/10/2021 at 10:39 AM, Mr cue said:

They did the same thing to me.

But I put in a statement withdrawing the increases before they even started all the games.

And put that I am only applying for smc benfits.

I mail it cretifed and fax it.

Don't let them play that game good luck

Did that work for you? I sent them a letter via va.gov attached to my claim stating that I am only applying for SMC, period. Why would I apply for increases of most of my rated disabilities when I'm 100% already. 

Now they are scheduling C&P exams for the items I am already rated permanent on. Perhaps they are trying to tie it in to my aid/attendance request but I don't want to be examined for items I'm already satisfied with. 

This is so frustrating, like I opened a can of worms and put my ratings at risk. I thought thay could only request new exams if they have reason to believe that your condition has improved. I should only bee required to attend a 21-2680 aid/attendance exam, right?

[8th&IMarine]

14 minutes ago, 8th&IMarine said:

Did that work for you? I sent them a letter via va.gov attached to my claim stating that I am only applying for SMC, period. Why would I apply for increases of most of my rated disabilities when I'm 100% already. 

Now they are scheduling C&P exams for the items I am already rated permanent on. Perhaps they are trying to tie it in to my aid/attendance request but I don't want to be examined for items I'm already satisfied with. 

This is so frustrating, like I opened a can of worms and put my ratings at risk. I thought thay could only request new exams if they have reason to believe that your condition has improved. I should only bee required to attend a 21-2680 aid/attendance exam, right?

I guess what most concerns me is attending exams for my rated disabilities which are already "permanent" and static. I could not only be reduced but lose my permanent status as well. I am going to sned another letter withdrawing any inferred claims and asking them to solely consider SMC based on what they have. Don't know if it will work though and the exam scheduling has already been set in motion.

What if I don't attend the C&P's they are scheduling? Can they reduce my existing percentages and remove my permanent status?

I want to thank all the responses and advice I have received on here so far!

[8th&IMarine]

I found this in the M21 manual. Not sure if it's good or bad, but it looks like they shouldn't be including my s/c's in the claim because there is no evidence that they have worsened?

VA Forms 21-2680, 21-4502, and 26-4555 are not specific claims for increased evaluation of an SC disability.  However, the issue of increased evaluation can be considered within the scope of the claim for SMC, auto, or adapted housing benefits and should be addressed in the rating decision when evidence on the form or in the evidence associated with the claim indicates the presence of a disability that is within the scope of an SC disability (such as a complication of diabetes), or other lay or medical evidence associated with the claim indicates the SC disability may have worsened.   Important:  If the medical evidence is insufficient to evaluate the disability, request examination of the condition as a part of the claim for SMC, auto, or adapted housing benefits.  Do not routinely request examinations without first assessing the medical evidence for sufficiency.  Only address the condition in the rating decision when examination or other medical evidence confirms a change in the disability evaluation of the SC issue is warranted or confirms the presence of the condition that is within the scope of another SC condition.

 

[Mr cue]

If they order the exam I would believe they would denied it if you don't go to exam.

Make sure you put those letters in.

So even if they try anything it part of your record.

I am going threw something similar right now.

I just withdraw the remand for loss of use.

Because they are try to tie it to my smc o and r which was remand by the court.

They have been shopping for a unfavorable exam for 6 month for loss of use.

I just withdraw it.

I don't have the patience for the games ain't more

Good luck 

[Mr cue]

I found this from my remand.

In  a January  2020  decision,  the Board  granted  SMC  housebound  from  May  9, 2018 to  July  16, 2018  and  SMC based on  the  need for aid and attendance  since  July  17, 2018 and found that  increased rating claims for cervical  spine and  left  elbow disabilities have been  withdrawn.

See when I apply for smc they try to do the increase thing and I withdraw it.

And this show they can grant smc without the increase rating stuff.

 

 

 

[8th&IMarine]

So I uploaded a letter stating that I did not want all my disabilities increased that they added to my SMC claim, and asked them to be withdrawn. In the meantime, VES (the C&P exam folks) was sending me e-mails which I answered by saying that I would be willing to go but was waiting on a response from the VA. I also withdrew their claims via a letter to ask va.gov (the new IRIS system) It's been 2 weeks and I have heard nothing from VA or anymore from the exam schedulers.  All the additional increase claims they added are still showing up on VA.gov and ebennies. Waiting  for some kind of communication from someone now and that, as you know, is the hardest part. I'm assuming that the C&P schedulers would have to snail-mail me an actual appointment date before the VA could say I refused to go to the exam.