Smc And Aid And Attendance Options

[Berta]

My SMC CUE is for R-1 Morgan-

I just got a lawyer for my CUE claims and have my info in front of me-

I clearly rattled off the veteran's disabilities that would warrant this rating and why- and used all sorts of M21- and 38 CFR regs-and established medical and other evidence-

will this part of my response help you?

The VARO raised 6 issues and I responded to each one-


# 6 VA states in their letter : "The alledged error is material to the outcome" they wanted to know how-
I stated:
"The proper 2 years of retro SMC at the R-1 level is supported by evidence VA has to include vision problems, all cliical VA med records, EEOC testimony from Case # xx-xxx in the C file, all Social Security records -the veteran had 2 SSA awards-
proving 2 independent VA 100% SC awards,loss of use of hands, balance and propulsion problems, (C & P of March 1993)etc -all reflected in his clinical record (and OGC documents etc)to support SMR R-1-
for veteran, one wife and one child for two years prior to his death as within the SMC historic rate chart at the VA web site.

The SMC "S" award is obvious but I would NOD that award as it would not be correct.

My calculations show $62,402- 2 years retro SMC based on all above established VA case law and regs,(enclosed also)for which I have already subtracted the 100% VA paid the vet in his lifetime 2 years prior to his death.

This is the manifested altered outcome that the alleged error is material to., per your letter."

From CUE MArch 2006 file

This post has been edited by Berta: Mar 5 2008, 12:26 PM

[Guest_morgan_*GuestMember]

Rich, I have several questions, so please bear with me.

How could one have two L ratings bumped to R1? Wouldn't another 100% rating push the SMC rating a full step to M? Or would it go to R1 if the second L causes a separate and distinct need for aid and attendance? If so, does each condition have to require a different type of aid and attendance? Such as, one causes need for pain management by medical professionals, and one causes need for help with ADLs, as opposed to both conditions causing need for help with ADLs. Maybe I'm confused by thinking R1/R2 is reached by "enough" SC conditions pushing enough steps. In other words, doesn't one have to "step" from L through O or the highest level of P before R1/R2 is granted? Or are half or full steps restricted to one-time application because of the P restriction and any future 50% or 100% SC ratings wouldn't be applied in steps, leaving SMC R based strictly on higher level of care needed for two Ls, without which, the veteran would have to be in a nursing home, hospital, etc? Whew! I'm always bewildered trying to decipher SMC, but writing this seems more confusing. I hope you understand what I just wrote. (IMG:http://www.hadit.com/forums/style_emoticons/default/smile.gif)

To clarify some of what I'm saying, this case example came from the M21-1MR. The veteran has two 100% ratings, but only one needs A&A:

Situation: The veteran has a
• 100-percent disabling psychiatric condition that does not require A&A, and
• 100-percent disabling heart condition that does require A&A.

Result: Entitlement under 38 U.S.C. 1114(m) is warranted based upon the need for A&A plus an additional 100-percent disability.

My husband has two 100% SC ratings, plus 60% combined for other SC conditions and was granted A&A, but the VA has rated him at M. The two 100% ratings were not rated at the same time, but should have been if the VSO had been doing his job. A private doctor, who has treated him for about three years, wrote an IMO letter stating that either condition already rated at SC 100% would require aid and attendance, if suffered singly. I think my husband should have been rated at SMC R1, not M.

This post has been edited by morgan: Mar 5 2008, 01:03 PM

[Rich T]

R1

[rentalguy1]

What happenes when a vet has 2 "L" awards, where does it put him on the smc level?

Well, I don't know the answer to that one off hand, but I'll look into it.

[windy city]

First, the A&A levels (all three are part of the SMC (CFR 38 3.350). Section P is not a level in and of itself. IT has five parts. In a nutshell, part 1 deals with degrees of LOU and part 2 degrees of blindness. Parts 3 & 4 (either 1 or the other, but not both, are assigned one time for any additional 50%, or 100% on top of levels L to N. Part 5 deals with LOU for 3 extremities.

What happenes when a vet has 2 "L" awards, where does it put him on the smc level?

[Rich T]

First, the A&A levels (all three are part of the SMC (CFR 38 3.350). Section P is not a level in and of itself. IT has five parts. In a nutshell, part 1 deals with degrees of LOU and part 2 degrees of blindness. Parts 3 & 4 (either 1 or the other, but not both, are assigned one time for any additional 50%, or 100% on top of levels L to N. Part 5 deals with LOU for 3 extremities.

This post has been edited by Rich T: Mar 3 2008, 11:48 AM

[Guest_morgan_*GuestMember]

Thank you so much for this "beyond-the-call-of-duty" answer! Thank you for finding that for me. I think I get confused when I try to decipher how one gets to O or the highest level of P without LO or LOU of limbs or blindness.

This is a big help on A&A. And I was needing info on SC'd conditions. Do you think the "physician employed by the Department" is a C&P examiner or could a PCP employed by the VA do this determination if the veteran is so ill he is unable to go for a C&P exam?

This post has been edited by morgan: Mar 3 2008, 10:47 AM

[rentalguy1]

A&A for Pension and Compensation are different things. I don't know about pension, but if you are asking about A&A for SC'd compensation, then:

SMC rates correlate to the paragraph letter in 38 USC 1114. In other words, A&A falls under 38 USC 1114 (l), therefore, when you look at the SMC rates, A&A is the "L" rate.

You can qualify for R1 and R2 without loss/LOU/blindness so long as you can medically prove the need for the higher rate and your SC'd disabilities are the reason for your need of A&A.

from 38 USC 1114:

® Subject to section 5503 © of this title, if any veteran, otherwise entitled to compensation authorized under subsection (o) of this section, at the maximum rate authorized under subsection (p) of this section, or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) of this section and at the rate authorized under subsection (k) of this section, is in need of regular aid and attendance, then, in addition to such compensation— (1) the veteran shall be paid a monthly aid and attendance allowance at the rate of $1,792; or <A name=r_2>(2) if the veteran, in addition to such need for regular aid and attendance, is in need of a higher level of care, such veteran shall be paid a monthly aid and attendance allowance at the rate of $2,669, in lieu of the allowance authorized in clause (1) of this subsection, if the Secretary finds that the veteran, in the absence of the provision of such care, would require hospitalization, nursing home care, or other residential institutional care. For the purposes of clause (2) of this subsection, need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran’s home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. The existence of the need for such care shall be determined by a physician employed by the Department or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such physician. For the purposes of section 1134 of this title, such allowance shall be considered as additional compensation payable for disability.

[Guest_morgan_*GuestMember]

Sorry, I don't mean to be a thickhead, but do you mean the SMC rates from L to R includes the additional A&A compensation? I think A&A is something over $200, a little bit more than homebound rate.

Also do you know if a veteran can qualify for SMC R1 or R2 without loss or loss of use of a limb or blindness? I think I read something somewhere about a provision for severe organ system dysfunction, but I can't find where I read that.

[rentalguy1]

regular A&A is paid at the "L" rate. Higher level A&A rated are paid at the "R1" and R2" rates. Higher levels are for someone who needs A&A from someone with specialized medical training.

[Guest_morgan_*GuestMember]

Does anyone know if the SMC compensation rates include compensation for Aid and Attendance. Or should A&A be paid in addition to the SMC rate?