Aid and Attendance to be reviewed under AMA Guidelines

[Bella]

I am 100% IU for over 21 years (degenerative arthritis, lumbar strain, ruptured disc, inner body fusion

with pedicle rods/screws) plus SMC-S (60% cervical arthritis, radiculopathy of both upper extremities-

with crippled drawn hands, no grip, no strength).

I was recently granted in OCT 2022 100%PT with elgibility to SAH (loss of use of lower extremities)

due to radiculopathy, stress fractures - shin splints (residual), arthritis, flexion, extension, instability.

I was NOT given any increase in my pay- I was under the understanding that loss of use should

be inferred automatically to SMC-L….but was not for me. 

The decision did say there was a compensation issue on appeal that would be reviewed according to

AMA guidelines. (Their VA doctor said I in fact need A/A due to ADL’s (3) due to the radiculopathy, IVDS-

cervical arthritis, helplessness) Should I have be bumped with the new ratings to SMC-L or L1/2 or is

it necessary to wait on this compensation issue the judge was talking about. (Which I guess I don’t have 

a choice but to wait) What should I be rated at? Should I be receiving SMC-L or more? Why wasn’t 

SMC -L automatically given? 

MY current RATINGS:

100% IU PT

60% SMC -S

100% PT Loss of use of LE

 

Thank you kindly-any advice is appreciated.

 

[broncovet]

Welcome to hadit! 

   Mostly, for VA, "automatically given", mostly means its awarded to the Veteran "only after a big fight".  

This said, you posted:

Quote

 

I was recently granted in OCT 2022 100%PT with elgibility to SAH (loss of use of lower extremities)

due to radiculopathy, stress fractures - shin splints (residual), arthritis, flexion, extension, instability.

I was NOT given any increase in my pay- I was under the understanding that loss of use should

be inferred automatically to SMC-L

 

Did you receive a (VARO decision) on this, or is this sort of what ebenefits/va.gov says?  Interestingly, you can apparently now download recent decisions from ebenefits/va.gov so you may no longer have to wait for the envelope.  

If you did receive a decision, what were the reasons and bases?  (for not increasing comp due to loss of use).  

SMC L can be granted for "at least" 2 reasons:  

1.  Aid and Attendance

2.  Loss of use 

     It sounds like you are not receiving comp for aid and attendance, but it does sound like you may need it.  Remember, A and A performed by a family member does not preclude you from getting compensation for it.  

     Most likely, you should probably appeal (the denial of SMC L), however, it sounds like there is "another decision pending" which could be SMC L, but I have no idea.  It certainly would not hurt to file a NOD disputing the denial, assuming it was denied.  

     Remember, SMC is for Service connected conditions..has a doctor opined your loss of use is due to one or more service connected disabilities?  

     You probably need to review your file, and file a NOD.  I would go to the BVA "with new evidence" if you have new evidence.  

[Bella]

I received a BVA decision in Oct 2022. I had c/p’s in Oct 2019 and 2 c/p’s in Jan 2022 as well

as a complete medical records review. Their c/p VA doctor completed the 21-2680 favorable 

for A/A. Everything is service connected. The ONLY compensation I am receiving is 100 IU and 

SMS- S even though I was granted another 100 P/T for loss of use of lower extremities. (and

eligibility for SAH) I though L was inferred with my loss of use…

[Rattler]

A very good VSO told me you have to ask. What he meant was you have to apply via one of the forms you could start with a 21-4138 and ask that you want them to consider you for SMC-L or L1/2. might get the ball rolling.

[broncovet]

Yes, its inferred, but you still have to ask, as Rattler said.  Sometimes, VA will grant it upon a decision, but not always.  

M21MR basically says whenever a Veteran is granted 100 percent, they need to adjuticate SMC S and SMC L.  

You may well be entitlted to "2" L's...one for Aid and attendance, another for loss of use.  Apply for both.  

https://www.va.gov/decision-reviews/supplemental-claim/

and https://www.va.gov/find-forms/about-form-21-2680/

My advice is to do "all 4"...both file for these benefits (forms above) and ALSO appeal.  

While its true that SMC is "inferred" and your effective date should be the earliest date you met the criteria (regardless of when you file), I think appealing to preserve your effective date is still a good idea, along with applying.  

Va is funny sometimes.  They could "reject" your appeal because A and A wasnt adjuticated.  (Even tho it should have been).  That's why you hit VA from all angles...not "just" the one you think...because, time after time, I have been awarded benefits "way different" than what I thought.  

[Bella]

The VA doctor from the C/P already filled out a favorable 21-2680 form for A/A-and I asked for SMC- “L”

for they LOU that was granted. 

[broncovet]

Loss of use is complicated.  (So is SMC).  First, the only real way to "make sure" that VA CONSIDERED your favorable evidence is to :

A. check the decision, it should state the evidence considered

B.  Review a copy of your files.  There is a "MF" (mystery force) that causes Veterans favorable evidence to disappear.  If that happened to you, I promise you are not the first.  There is even a regulation for "lost evidence" now found.  38 CFR 3.156.   

    While I have not reviewed your file, nor your decision, you may be able to get some clarification here:

https://www.hillandponton.com/va-benefits-special-monthly-compensation/

    Hiring a law firm to get you the compensation (SMC) you deserve may not be a bad idea especially if unfamiliar with SMC.   Even attorney's do not always get the SMC complexities.  "The best" law firm for SMC is almost certainly CCK law.  They have "vast" experience with SMC and they will review your decision and your file at no cost to you.  Then you can decide if you want to hire them, most likely it will be 20 percent of the retro back pay to hire the attorney.  Still, 80 percent of "something" IS way more than 100 percent of nothing.  

    If you go the lawyer route, choose from those who are NOVA advocates:

https://www.vetadvocates.org/cpages/sustaining-members-directory

   Generally, law firms wont (cant) represent you until you have had at least one denial. When the VARO "adjudicates issue A" but does not address "issue B" that generally means its a "deemed denial" (also called a "secret denial).  There is much case law on deemed denials, it seems to go directly against this regulation:

    

Quote

 3.103 Procedural due process and other rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

"If" you never applied for SMC (A and A, loss of use, housebound, etc) then it is likely premature to get an attorney.  Apply first.  I still think it may not be a bad idea to "appeal" a VARO decision that granted 100 percent "but did not address" entitlement to SMC.

You can dig into this Veterans (somewhat similar) complaint as your's:

https://www.uscourts.cavc.gov/documents/Gazelle14-2272.pdf

This is why I suggest you apply, and not depend on VA to infer your claim.  

Edited March 15 by broncovet (see edit history)

[jamescripps2]

Sounds simple to me.

"L" award for loss of use of lower extremities. A second "L" award for A&A would satisfy the requirement of the maximum SMC "O", at which point the A&A becomes "R-1" at the least. Depending upon your situation, it could warrant a grant of "R-2". (see CFR 3.350 & CFR 3.352) Also see 38 CFR 351 (C) (3).

Keep in mind that the need for A&A must be bessed upon a seperate and distinct disability in order to avoid the  pyramiding rule at 38 CFR 3.352.  Fail to do this and you will find yourself stuck forever at SMC "M 1/2".

Refering to your original post in this thread, it is aparent to me that you need to file for loss of use of upper  extremities which would provide for your seperate and distinct need of A&A should you be caught short.

File the intent to file NOW.

When you file the claim ask for A&A at SMC "L"

Ask for loss of use of two feet at SMC "L"

Obtain a VA form 21-2680 and have it filled out by your PCP in a way that states that your need of A&A is based upon soley upon the loss of use of two hands, disreguarding any other disabilities.

File the claim along with the properly completed 2680. Instruct the VA that the loss of use of hands is to be used as the seperate and distinct disability that dictates the need of A&A.

Ask that your claim be expedited.

Sit back and watch the fireworks begin!

By the way, you did not mention an automobile grant with adaptive equipment, or Independent Living Program, (ILP), benefits through VR&E, which you might want to ask for. How about an electric wheelchair and/or scooter?

Have you applied for PCAFC caregiver benefits through your patient Advocate? Might want to do that, for shure!