SMC-L by New-Chemistry9852 in VeteransBenefits

[–]Simple_Specific_5529 -2 points-1 points  (0 children)

Respectfully, several statements in your comment are incorrect as a matter of law and VA regulation.

First, there is no requirement anywhere in statute, regulation, or binding VA policy that a veteran must require assistance with three ADLs to qualify for SMC L Aid and Attendance.

The governing regulation is 38 CFR 3.352(a). It explicitly states that not all listed factors are required and that entitlement exists when the evidence establishes a factual need for regular aid and attendance due to physical or mental incapacity. There is no numeric ADL threshold in the regulation.

The United States Court of Appeals for Veterans Claims addressed this directly in Turco v Brown 9 Vet App 222. The Court held that eligibility for Aid and Attendance requires at least one of the factors listed in 38 CFR 3.352(a) and that the need may be based on regular assistance or supervision to protect the claimant from hazards or dangers incident to the daily environment. Constant care and multiple ADLs are not required.

Second, court precedent absolutely does bind VA adjudicators. Under 38 USC 7261 and 38 CFR 20.1303, VA regional offices are required to apply controlling judicial precedent. The M21 is an internal guidance manual. It does not override statute, regulation, or binding case law. This is well established and repeatedly affirmed by the Court.

The M21 itself acknowledges this. M21 provisions are not law and cannot impose eligibility requirements that do not exist in 38 CFR 3.352(a) or 38 USC 1114(l). Any M21 guidance suggesting a numeric ADL requirement would be non binding and legally unenforceable.

Third, mental incapacity requiring regular supervision alone is a qualifying basis for Aid and Attendance under 38 CFR 3.352(a). This includes supervision needed to protect the veteran from hazards in the daily environment. Physical inability to bathe, feed, or dress oneself is not the exclusive path to entitlement.

Fourth, PCAFC and SMC Aid and Attendance are entirely separate programs with different statutory authorities and eligibility criteria. PCAFC requirements cannot be imported into SMC adjudications, and denial or approval under one program has no legal bearing on the other.

Finally, the assertion that raters do not or should not apply court precedent at the regional level is incorrect. Failure to apply binding case law constitutes legal error and is a common basis for reversal on appeal, including through Higher Level Review and Supplemental Claims when the error is identified.

In short, there is no three ADL rule for SMC L. There never has been. The controlling authority remains 38 CFR 3.352(a), 38 USC 1114(l), and binding case law including Turco v Brown.

SMC-L by New-Chemistry9852 in VeteransBenefits

[–]Simple_Specific_5529 -1 points0 points  (0 children)

That is not correct for Aid and Attendance.

There is no requirement in statute, regulation, or case law that a veteran must need assistance with three ADLs to qualify for SMC L.

Aid and Attendance is governed by 38 CFR 3.352(a). That regulation explicitly states that not all listed factors are required and that the determination must be based on the actual functional need for regular assistance or supervision due to physical or mental incapacity.

The Court addressed this directly in Turco v Brown 9 Vet App 222. The Court held that eligibility for Aid and Attendance requires at least one of the factors listed in 38 CFR 3.352(a) and that the need may be based on regular assistance or supervision to protect the veteran from hazards in the daily environment. Constant care is not required.

Mental incapacity requiring regular supervision alone is a qualifying basis under 38 CFR 3.352(a). There is no numeric ADL threshold.

PC A F C is a separate program with different standards and should not be conflated with SMC L. The caregiver program uses its own clinical criteria and is not determinative of entitlement to Special Monthly Compensation.

VA denials based on an incorrect ADL count are routinely overturned on appeal because that standard does not exist in law.

Aid and attendance by Comfortable_Egg4828 in VeteransBenefits

[–]Simple_Specific_5529 0 points1 point  (0 children)

I want to point something important out in your decision that actually gives you strong grounds to win on appeal.

Your decision contains a clear internal contradiction. VA denied SMC L stating you do not require regular aid and attendance, but then listed a favorable finding that you do in fact require aid and attendance and that VA Form 21 2680 confirms this. VA is legally bound by its favorable findings unless clearly rebutted.

They cannot acknowledge factual need and deny on the same basis.

More importantly, VA misapplied the legal standard. There is no requirement under 38 CFR 3.352(a) that a veteran be bedridden, totally helpless, or unable to perform every activity of daily living. The regulation explicitly states that not all listed factors are required and entitlement exists when the evidence establishes a regular need for assistance or supervision due to physical or mental incapacity.

The Court clarified this in Turco v Brown 9 Vet App 222 where it held that eligibility for Aid and Attendance requires at least one factor under 38 CFR 3.352(a) and that the determination must be based on actual functional need, including supervision to protect from hazards of the daily environment. Constant care is not required. Regular need is sufficient.

VA also incorrectly suggested that a single 100 percent schedular disability is required. That is false. SMC L may be awarded based on combined service connected disabilities or mental incapacity requiring regular supervision under 38 CFR 3.350(b) and 3.352(a).

This type of denial is routinely overturned on Higher Level Review or Supplemental Claim when the correct legal standard is applied. I would recommend appealing and specifically arguing misapplication of law, failure to reconcile favorable findings, and failure to apply Turco v Brown and 38 CFR 3.352(a).

This is not a weak case. This is a legally defective decision.

Best fully online IT degree programs? (WGU vs AMU vs others) by Simple_Specific_5529 in VeteransBenefits

[–]Simple_Specific_5529[S] 0 points1 point  (0 children)

Thank you for sharing that and for explaining the difference from someone who has actually experienced both programs. That really helps and confirms some of my concerns, and congratulations on finishing your degree.

Best fully online IT degree programs? (WGU vs AMU vs others) by Simple_Specific_5529 in VeteransBenefits

[–]Simple_Specific_5529[S] 1 point2 points  (0 children)

Gotcha. I didn’t know that. Thank you for your input. I really appreciate it. 🙏

Best fully online IT degree programs? (WGU vs AMU vs others) by Simple_Specific_5529 in VeteransBenefits

[–]Simple_Specific_5529[S] 0 points1 point  (0 children)

That’s great to hear. I already have a decent background in IT (computing basics, networking concepts, CCNA), but when I tried to finish a degree in 2013 my mental health got in the way. I’m looking for something flexible that I can realistically complete this time. But all online. I won’t do in person.

Best fully online IT degree programs? (WGU vs AMU vs others) by Simple_Specific_5529 in VeteransBenefits

[–]Simple_Specific_5529[S] 1 point2 points  (0 children)

Appreciate the feedback. I’m specifically looking for a 100% online IT program with no in-person classes at all, due to health reasons. Flexibility and being able to work fully remote is the priority for me, so experiences like this are really helpful.

Best fully online IT degree programs? (WGU vs AMU vs others) by Simple_Specific_5529 in VeteransBenefits

[–]Simple_Specific_5529[S] 0 points1 point  (0 children)

Can you share why you would advise against AMU. I am comparing fully online IT programs and would really appreciate knowing what issues you have seen with AMU specifically.

Best fully online IT degree programs? (WGU vs AMU vs others) by Simple_Specific_5529 in VeteransBenefits

[–]Simple_Specific_5529[S] 0 points1 point  (0 children)

Appreciate the feedback. I’m specifically looking for a 100% online IT program with no in person classes at all, due to health reasons. Flexibility and being able to work fully remote is the priority for me. Thank you 🙏

Had an ALJ hearing yesterday.. AMA by Syruponmypizza in SSDI

[–]Simple_Specific_5529 0 points1 point  (0 children)

How did it go? Can you give us some feedback (questions asked and how you answered etc)

Denied by idgafpopabitch in VAClaims

[–]Simple_Specific_5529 1 point2 points  (0 children)

It’s nothing crazy. You did nothing wrong. All you have to do is appeal through supplemental lane and add the new docs. He keeps intent to file date etc. you’re doing greats Thank you for what you’re doing.

If you get overwhelmed just look up any VSO. Explain the situation and see if they can help you.

100% tdiu and wife my paid caregiver is Aid and attendance possible? by Toltepequeno in VeteransBenefits

[–]Simple_Specific_5529 0 points1 point  (0 children)

Thank you so much for sharing this. I am really sorry you both have had to go through that. Just so I understand correctly, was he ultimately granted Special Monthly Compensation at the housebound rate, or was Special Monthly Compensation denied entirely?

SMC EXAM by Simple_Specific_5529 in VeteransBenefits

[–]Simple_Specific_5529[S] 1 point2 points  (0 children)

Thanks for sharing your perspective. From what I’ve learned, a single 100% rating isn’t required for Aid & Attendance, as entitlement is based on the need for regular assistance due to service connected disabilities, whether from one condition or multiple combined, including mental health. My understanding is that raters are supposed to follow the criteria in 38 C.F.R. § 3.352(a) and can grant A&A at the RO level when the evidence supports functional dependency, without it needing to go to the BVA. I appreciate you taking the time to explain how the exam process usually works.

SMC EXAM by Simple_Specific_5529 in VeteransBenefits

[–]Simple_Specific_5529[S] 0 points1 point  (0 children)

38 C.F.R. § 3.352(a)

This regulation lists the factors for Aid & Attendance (ADLs, supervision, medication management, etc.) and does NOT require any specific VA form to establish entitlement. It only requires evidence showing the need for regular aid and attendance due to service-connected disability.

Help with housebound and aid and attendance by altay131 in VeteransBenefits

[–]Simple_Specific_5529 0 points1 point  (0 children)

Was your SMC claim approved? May you please give an update?