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??

[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

[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.