On-Line SMC-l claim question - Page 5 - SMC L and L 1/2 - VA Disability Community via Hadit.com Jump to content
VA Disability Community via Hadit.com
  • ask-your-va-disability-claims-question.png

    27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • 01-2024-stay-online-donate-banner.png

  • 0

On-Line SMC-l claim question

Rate this question


8th&IMarine

Question

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??

Link to comment
Share on other sites

Recommended Posts

  • 0

First, VA rarely, if ever, "infers" entitlement to SMC above S. The law reads that once you attain a 100% schedular or an IU, they are obligated to review for SMC. (Akles v. Derwinski). They say they do. Experience and the number of times my office phone rings per day tells me they don't. SMC will never be extended (outside of K) to anyone who isn't 100%. Period.

 

 

Link to comment
Share on other sites

  • 0

Yes I agree.

So if a veteran apply for smc because they never inferr it for them.

They shouldn't be treat them as if they are applying for an increase rating of there disability.

There is no law stating this. the va is using there own intepertion.

That why I withdraw them when they try that with me.

so if they try any funny stuff I got a back up plan.lol

 

Law also stated use caution when ordering comp exams for smc benfits.

I got like 7 8 different exam for smc benfits. When they are to be granted and effective by your record.

I believe as long as a veteran is tdiu he should be smc s. Housebound by fact.

The law is confine to one home.

Which the court rule is not been able to leave one home to make a income.

I think there is no other group of veterans this apply to.

If you got a tdiu rating you can't leave your home to make a income.

I believe a veteran should be get smc s if the tdiu is based on one condition.

I apply and now all my condition make up my tdiu lol. This is there thing

I was granted tdiu 60 one condition.

Two get tdiu based on two or more disability they must combine rated to 70.

The va has been fighting me hard on this one. They will not even address it now smh

The  last bva decision I got is denied smc s housebound by fact 

because you were able to leave your home an drive and travel to doctor appointment. An was able to go fishing with a buddy 4 years ago.

I can't make this up.

Lol isn't that the same reason they denied smc s in Howell v Nicholson. Crazy part this is part of the Mr 21 manual.

 

Yea guys get smc higher than l or s is a fight.

They will not even address a time period before I apply for smc.

Treating it like a increase rating claim.

Good luck again. And I will tell every veteran they should read the purple book 3 4 times.

I think many veterans will have a better understanding of how thing are to work at va.

To help with there fight

Now will they follow there rules  that a different story.

Happy Thanksgiving all.

Link to comment
Share on other sites

  • 0
On 11/25/2021 at 12:52 PM, Mr cue said:

So if a veteran apply for smc because they never inferr it for them.

They shouldn't be treat them as if they are applying for an increase rating of there disability.

And that is my point! I have been TDIU AND 100% Permanent and Total (Schedular) for 4 years. ALL of my ratings are listed as static.  I recently found out about the Aid/Attendance in SMC-L based on the need for assistance in dressing, bathing, hygiene, etc..  I know, after reading all the other SMC levels that this is the ONLY one I would ever qualify for. So my VA Dr did a very detailed 21-2680 explaining the needs I have in ADL's and their relation to my s/c disabilities. They should have no need to re-examine all my existing rated disabilities and potentially have me at risk for reductions because of a simple request for A&A. I was under the impression that they could not do a re-exam for P&T rated unless there was evidence showing an improvement (which there most definitely isn't.)

The reason it took me from 2007 until 2017 to get to 100% P&T was due to a few inattentive examiners and I don't want to take that risk again. 

So I will now just wait, I guess, until I hear from the VA.

Link to comment
Share on other sites

  • 0
On 11/24/2021 at 3:47 PM, asknod said:

I foresee VA will let the claim continue as is. They'll send you a c&p date. When you go, they'll ignore your contention about not wanting to file for increase. They will probably increase something small upwards about 10 % and call it good. Maybe they'll grant a&A. Maybe not. Can't see your Code sheet. 

One thing I've learned in this is they do not pay any attention to what you want. In this case, you're asking to enter the higher SMCs. That entails an in-depth examination of all your disabilities and the inferred responsibility to try to grant you the highest and best rating they can. The problem is they tend to try to find something to reduce you if you are not p&t.

Seems a lot of Vets think VA is on a constant mission to reduce you. VA gets this idea from records produced at VAMCs. So if you use the VA for your medical, you leave yourself wide open to getting whacked. Once you are p&t, you can apply for SSA/SSD and get your medical outside VA. Then they cannot see your purported "improvement". VA doctors always report wrongly most times or fail to convey the level of a disability. I have a gal with MS who came in to Hampton VAMC for her monthly infusion for multiple sclerosis. The nurse writes "pt. is ambulatory". Yep. She sure was. Her husband was holding her left arm and her right leg was riding on a knee scooter. Somehow that didn't get into the record. Only the VA would record something like that-never a civvie nurse. Did you know if you go to their lab for blood work and they do a urine on you that the urinalysis includes a drug test? 

Shoot. Some things get better. Granted, most do not. If you live in a sub-TDIU rating world or are not p&t yet, you are always a sitting duck. Don't give them the ammo to reduce you by saying stupid things at c&ps. No smiling. No Happy chat. Never diagnose yourself or they'll use it against you. 

At a Vet's c&p for status post encephalitis symtoms, his spouse said he had "anger management issues." The c&p guy immediately accepted her nonexistent psychology degree and used her testimony to say the guy's anger wasn't due to TBI symptoms . Boom TBI gets reduced to 0%. 

Learn VA's tricks before they use them against you.

Happy Thanksgiving.

SMC-L is the only one I see that I could qualify for, and that is based solely on the need for aid/attendance. I don't have a SINGLE rating of 100%, my highest is 70%, but my combined ratings put me over the top on remand 4 years ago so I am at 100% and Permanent and Static on all ratings. 

A few of my many C&P examiners were just flat out wrong because they were spending all the time on the keyboard instead of doing an actual exam. I had 2 different examiners state that I had a "normal gait" when I limped into the exam with my cane. You are correct about VAMC reports: My previous PCP copied and pasted alot of her "notes" from old visits so it appeared that I walked normally as well. It took a total hip replacement and an Xray of the other hip for someone to finally wake up "on remand" to grant the claims.

So, yeah, I don't want the VA to open old wounds and go through all these exams all over again just to get A&A. And, with a permanent and static rating, I don't think they can force a re-exam unless there is clear medical evidence of improvement and there is absolutely nothing in my files that would lead them to believe there is.  So by simply asking for A&A I opened a can of worms.

Link to comment
Share on other sites

  • 0
  • Moderator

Pretty much, A and A wont be awarded unless there is an exam.  (Exceptions:  If you already have, in your file, documentation of A and A).  

Overlooking this, however, is a bad idea:  You can get additional benefits for 100 plus 100, as well as the well known SMC S (100 plus 60), as follows:

Quote

(4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above.

(i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114 (l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use.

(ii) The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.

 

So, dont overlook the possibility you could get another 100 percent rating, as above, and it increase your smc as above. 

For the above  reason I dont recommend withdrawing an increase.  

I have withdrawn claims before, and it always came back to haunt me and make it harder.  

Using my personal example, I had applied for arthritis of the knee..(I fractured my leg in service).  I withdrew that claim, thinking it would speed up the other issues.  

No, it did not speed ANYTHING up.  It still took 4 more years.  But, I cant easily go after my knee issues easily, because I withdrew them.  I wound up having a total knee replacement, due to the arthritis, and this would have made SMC S come way easier, and faster, because I would have then met the "100 plus 60" criteria..earlier. 

EXCEPTION:  On a few occassions, VEts have reported to me the VA lawyers offered Vets a deal. (Officially they are kinda not supposed to do that, but they have)

In other words if the VA offers something like:

"If you withdraw the knee arthritis claim, we will award the TDIU," or something similar.  

ONLY If they offer a benefit, then withdraw.  Otherwise, you are giving away settlement potential, when you have other pending claims.  

 

Edited by broncovet
Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use