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??

[8th&IMarine]

On 12/6/2021 at 8:01 PM, Mr cue said:

Smc benfits are granted by your record and effective by your record.

Va manual states use careful consideration why ordering exam.

And if the record or exam is not  good than order a specialized comp exam.

This is the law I believe

 

Ok I am not tell veterans they can do this.

I didn't it because I am 25 year protected and got sick of all the exams for loss of use.

I had over 8 and a the specialized comp exam. And they will not accept no one exam Smh 

And here is the remand 

Have you ever seen a bva judge stated if the veteran refuse the exam do a medical opinion.

I am happy with the evidence I got I want a decision on that. I don't need there assistance anymore.

I put this in my court case 

This is the bva remand after the cavc remand

 

U can even see the bva judge all but told ro and comp my disability has improved and to reduced my rating.

I was never going to let them put a unfavorable medical opinion in my record.

Now I am not telling veterans they can do this.

I feel just like the va  can end the duty to assist a veteran should be able to end it to.

I could be wrong

O and last thing the examiner isn't to make the determination on loss of use.

The rater is.

So why would a judge keep remand and keep ask a examiner to tell if I have loss of use.

Now if you got a new claim why would you not want a exam.

But if you got a 10 20 year record

Why do u need a exam for smc benfits.

A@a exam I understand that.

 

 

 

 

 

was noted to have severe ulnar neuropathy that limited his fingering, finger handling, feeling, fine motor movements, keyboarding, and work with hands over his head.  It was also noted that he could not make a tight fist with the left hand and had weakness with thumb to finger testing of all fingers.  Specifically, grip strength on the left was 3/5 and pinch strength was 2/5.  

Absent a rationale, given the severity of the objective findings and the Veteran’s subjective complaints, the Board is hesitant to rely on the examiner’s conclusion regarding functional impairment. Additionally, the Board notes that more recent VA treatment notes suggest a change in the Veteran’s condition.

 For example, in March 2021, the Veteran denied weakness in his hands, reported that he was not dropping things, and reported only intermittent numbness in his left hand and fingers.   Given the foregoing, the Board finds that remand is necessary for an examination and an opinion as to whether the Veteran has the functional equivalent of loss of use of his left hand and/or arm.   The matter is REMANDED for the following action: Provide the Veteran with a VA examination to assess the current severity of his service-connected left hand/arm disability.  

 

If the Veteran declines the examination, an opinion should be provided based on the record. Following examination of the Veteran and/or a review of the record, the examiner should provide an opinion as to whether the Veteran has the functional equivalent of loss of use of his left hand and/or arm.   For purposes of this opinion, “loss of use” will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or with use of a suitable prosthetic appliance. 

So I have withdrawn all the increase claims they added to my SMC-L claim. I simply cannot go through all this crap again after a decade of getting to where I'm at.

Just got this message back from AskVa.gov:

When you submitted VA Form 21-2680 on 11/3/2021, you also submitted VA Form 21-526EZ listing "SMC - L Aid and Attendance Secondary to Lumbar Spine Degenerative Disease (Claimed As Low Back Condition)"; therefore, medical opinion requests were sent to VES. The exam requests sent state : "The Veteran does not need to report for all examinations" indicating you may not have to attend an exam in person; however, it is the contractors discretion as to whether or not you must attend an exam for full review.

So the VA feels I don't even need to report for the exams, but they'll leave it to VES discretion? VES has the option of whether I need to or not?  This is the problem with contracting services!! Of course they want me to show up, they get PAID for it! 

[broncovet]

I agree with Asknod.  I think I recommended "not" withdrawing any claims, in the past.  We want VA to do things "our way", but they are gonna do them the way they want to.  

My c and p exams took an hour, and hour and a half tops.  

You probably spent more time than that canceling them.  

Still, I hope it works out for you, but this pretty firm rule applies to just about everyone who applies for benefits:  Never miss a c and p exam.  

Canceling C and p exams almost never results in additional benefits.  

[broncovet]

Mr Cue posted:

Quote

Smc benfits are granted by your record and effective by your record.

...suggesting no c and p exam is needed.  To the contrary, the form 21-2680 (to apply for housebound or  Aid and Attendance), specifically states, its an EXAMINATION for housebound/A and A.  

Quote

https://www.vba.va.gov/pubs/forms/vba-21-2680-are.pdf

 

Refusing the exam pretty much means withdrawal of claim,or denial.  You dont "have" to do it the VA way, but the Va does not have to award benefits if you dont do it their way.  

[FormerMember]

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^what he said.^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

If 8th & IMarine is actually 100% schedular and p&t (and not TDIU w/ SMC S), he has no worries about reductions. If he's 20-year protected for each of the items requested, c&p exams would be superfluous. However, do not ever misunderstand. Each disability has to be 20-year protected- not just the 100% p&t rating in toto. If you got rated 10% for tinnitus in 2015, it is not protected until 2035.  

Further, VA-contracted outfits like VES have the discretion to use the ACE process and do it on records review alone. If the rater feels there isn't enough to rate on, he can ask for a clarification of the exam or an actual eyes-on. Nowhere in this procedure do you get to dictate the terms.

Presumably, by being granted p&t, they conceded his disabilities were static or at best, not better. The act of shotgunning all the disabilities for increase is not  nefarious in its own right. It's SOP. SMC grants above S are what VA considers "serious". Once they let you in, if you get worse, they're going to have to keep giving you more SMC if it's SC. A grant of a&a is a favorable finding of fact and irreversible unless obtained by "omission or commission".  They are not going to grant a&a without examining you under a microscope. 

But it's also true that if you don't show up for a c&p, VA has two alternatives.

1). Deny the claim for a&a.

2) Reduce anything they want because they don't know whether the disabilities have worsened...or gotten better.

When you apply for disability, you agree to play by their rules. As several others have pointed out, you don't get to tell them what you will or will not do. Go to the exams. Get your decision as all of us do, and then plot your next move. Or don't... 

If you're that gun shy about what VA might do, I'd withdraw the a&a claim and roll up. In VA poker, you go big or go home. I think I speak for all of us in wishing this will have a positive outcome. But, from experience, we know missing a c&p is anathema to a decision.

Edited December 16, 2021 by asknod

[Mr cue]

I am not suggesting ain't thing I state the law.

Now if you choose to add on to it is up to the the veteran.

I am stating what I did to get smc l and how they treat it.

And how I press them with the law.

No where in that form does it state to do a exam for an increase of your disability.

Smcl is van feed one self bathing groom cleaning.

And you don't have to have everything.

Now is there a a@a comp exam yes.

After I withdraw the increase rating stuff.

Did I get that exam yes.

So I am not suggesting anything  this is all fact.

And all that you have to have a 100% rating to get smc l.

Is not real.

[Carl the Engineer]

This is how we learn. 

The proof will be in the pudding.

Now we wait,

Hamslice