SMC-L qualifications

[Vync]

Hello everyone,
I am helping a retired Army vet with conceded AO SC exposure and moderate dementia and other issues (pending SC) look into SMC-L. I looked into § 3.350 and these two criteria (in bold) stand out. 

Quote

§ 3.350
(a) Basic criteria for regular aid and attendance and permanently bedridden. 
...

"or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment."

"It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need."
...

Would any of the following potentially qualify him for SMC-L under the above criteria?

• Can no longer work because he forgot how to drive back and forth from work to home.
• Forgets to take his medicine or request refills. Sometimes forgets he took his medicine and takes more (took three months of meds in one month).
• Unable to budget how to pay bills.
• His wife has to do a house safety/security check before bed because he tends to leave the front door wide open or unlocked before going to bed.
• Requires assistance to get to the grocery store, buy groceries, and even buy what he is supposed to buy. Cannot shop unattended.
• Sometimes tries to or gets into the wrong vehicle when leaving stores, forgetting which car was his.
• Requires assistance to prepare food because he would under or overcook food, including poultry.
• Eats leftovers from the fridge which have gone bad.
• Often forgets to turn off the stove and nearly started fire.
• Mows the lawn during summer wearing inappropriate clothing like a long sleeve sweater or a coat.
• Has to be reminded to bathe and perform hygiene.

Any thoughts are greatly appreciated!

-V

[broncovet]

I have sorta been down that route.  I applied for A and A, based "not" on that I need help tying my shoes or taking a bath, "but", my wife reminds me to take my pills, "or" I can sink into a depression (from not taking the meds), and, in that state, I can cause harm to myself.  

My claim was denied.  Its documented I forget to take my pills "without" my wife reminding me. 

The VA has or did have a program where they would call the Veteran every day to remind them of the pills.  It was a robo call.  I hate robo calls.  But I had to admit that I did not need assistance "other than" being reminded to take my pills.  

I should have, but did not appeal on this basis.  Remember, the VA, because of Chevron deference, gets to interpret its own regulations, "unless they are arbritrary and capricious".  

Its a very tough standard to meet, showing the VA was interpreting its regulation "arbritrary and capricious manner" probably a higher legal standard than that of CUE.  

With arbritrary and capricious, you are basically challenging the VA, saying they hate Veterans, and have a mean intent to damage you, and they did so for no good reason (arbritrary), such as denial because you like Star Wars films.  

I do think maybe Mr. Carpenter should take this one on, and argue for the Veteran that he meets the standard you quoted in bold, above, and the VA is taking advantage of a Veteran with a mental disability, which should not happen.  Its like the VA is taking advantage of you because of your disability.  

[Vync]

@broncovet Thank you very much for the information. I can honestly say I fell your pain on this with the way the VA has interpreted their own regs on my claims over the years.

I did more digging and came across this topic. Within, No Result (member name shown there as "Former Member") pointed out some very interesting details (see below link).

 

Quoting No Result:

Quote

SMC is what is called an ancillary benefit and requires no filing... according to VA. Experience shows us otherwise. Please file a 21-526 EZ requesting entitlement to SMC under §3.350(b)(3). Have your girlfriend fill out a 4138 (and file)  stating what you cannot do by yourself that requires the need for A&A. The VA will send you out for a c&p and the examiner will fill out the VAF 21-2680. Submitting your own is a waste of time. Use §3.352(a) as your guide as to which disabilities to list. By law, you only need one impairment of activities of everyday living to qualify (  Turco v. Brown, 9 Vet. App. 222, 224 (1996).

Your authority for entitlement is vested in Akles v Derwinski (1991), Bradley v Peake (2008) and Buie v Shinseki (2010). SMC is due and payable from the date the medical records first show unequivocally that you needed A&A. Period. VA will attempt to grant based on the day of the c&p for the a&a. That is incorrect. You can file anytime. You are not limited by it being over a year since you were granted Chap. 35 DEA ((p&t). Best of luck.

Additional quote from further in the topic:

Quote

Always remember, SMC is an ancillary entitlement based not on an actual claim but your medical/physical condition. If it is due and owing, VA is required to award it automatically. There is no "one year" to appeal a denial. Once you prove your entitlement to it, it's due and owing back to the day your medical records show it was due, never the day that your c&p doctor signed the magic 2680. Seems I end up appealing every one of my SMC wins to fix an error like §3.350(f)(3)(4). 

Have you ever looked into Turco, Akles, and Buie to see how it might apply for your situation? I'll have to take the time to digest it to see how it might apply. I bet they have interpretation guidance buried somewhere deep in M21-1...

That second quote is quite surprising that the effective date would be when first documented.

 

[namvet6567]

Thanks both of you for posting this!!

[broncovet]

Correct.  Think of it like this:

    Your effective date, for "regular" (non SMC) claims is the later of the facts found, or date of claim, with exceptions.  

However, since VA is supposed to award SMC "when the Veteran meets the applicable criteria", the Vet need not "file a claim" for SMC.  We all know that VA does not always do their job, so, when WE know we are eligible for SMC, we can/do apply.  However, there is no limiting "date of claim" for SMC.  Thus, when the Veteran gets Special Monthly compensation, the effective date is the "facts found", that is, when the doctor indicates you first met the criteria.  

     Its been my experience that most of the VA's effective dates are wrong.  Why?  Its just another lowball.  Unless you appeal the effective date, it will stand.  And, since most Vets dont appeal their claims (fewer than 50 percent of claims are appealed), the VA gets away with it most of the time.