Ever since Congress instituted this statute (§1114 now but §314) back in the waning days of WW II, it has remained a mystery to most. VSOs are neither taught the art nor allowed to even acknowledge its very existence. I reckon I don’t know what they call it but it isn’t SMC. In the last 8 years, as most of you know, I’ve raised quite a ruckus over it and managed to get a lot of guys (and gals) fairly high SMC ratings. 

Aid and attendance is technically a misnomer because that is only one facet of a fourfold entitlement described in §3.350. Once you reach 100%-or TDIU for a single disease process- you are technically entitled to have VA put you under the microscope to determine if there is any way possible to give you more money.

Think about that. They are required to perform this analysis. If they don’t, technically, they’ve committed CUE. Fat chance you’ll ever make that stick. So, if you ever intend to get SMC, you can’t lollygag around and wait for them to figure it out. SMC is one of those actual freestanding claims that exist, as I said, but requires no filing. It’s due and payable on the day medical evidence says you were no longer able to accomplish the activities of daily living yourself and required someone to help you.

In this game, we/you file for it and once we/you win, the fun begins as to what date it can be proven your need arose. As can be expected, VA will assign the day of the a&a DBQ was executed rather than the day your medical records say you couldn’t a) walk; b) went blind; c) needed a&a; or, d) became bedridden.

Yesterday, I got a rating decision (RD) back from VA in VBMS. Let me say that the brand new client decided, in spite of my strict orders, to go down to the VAMC armed with a horribly screwed up 2680 and try to help me get his  a&a … before the ink was dry on the POA. They asked for SMC pension rather than compensation. They filled out the claimant area with the wife’s info and DOB/SSN. The doctor didn’t finish filling out the form by adding his name, rank, airspeed and tail number and even forgot to include his National Provider Identifier (NPI). Worst of all, probably, is that the Vet asked the doctor to file it for him.

The first time I set eyes on it was fifteen days later in his documents queue. I won’t burden you with the details but it seems some just do not read the cover letter instructions. I get that. It happens most frequently with my TBI clients and I can understand. They aren’t hitting on all 8 cylinders nor should they be held to account. But… when you put in a cover letter (below) that explicitly states “don’t do anything before you run it by me”, and they do the above, it’s bound to add about six to sixteen months to the process.

Blue ink Cover Letter for Client

Now, don’t laugh but each and every one of those big huge bolded 18- to 24-point fonts saying do not date the documents have been added, bolded and made larger in direct proportion to the frequency of error. For almost ten years, I’ve begged my folks to just give the VA pukes who call and try to get them to do something stupid my phone number.

Within five days of a mishap, I’ll see a VA 0820 report of contact where a VA ‘technician’ will note that the Veteran was called and he gave them all manner of wrong information. Worse, some fill out the 4142 and 4142a  forms and return them adding ungodly delays to their claims. After mailing them, they email me and ask if that was okay. Cupcake says I’m just not making myself clear.

This article is written to help all of you who have that insane desire to help your representative. Think about this. With the VA claims process being more difficult now that it ever was in the past, you rightfully should choose to have a ‘hired gun’ take your claim on. S/he is generally far more skilled in the process (or should be). Thus, it probably would be in your best interests to ask questions at every turn in the road if you feel uncomfortable. Acting unilaterally, as these folks did, can be harmful and cost you years in delayed justice.

Now, with that said, I want to show you a brand new technique of denial these folks experienced. In VA law, there is a duty to assist. VA flat-assed refused to call this old boy in for a c&p. The a&a 2680 and his records clearly and unmistakably supported a claim for a&a yet they try to make him provide the evidence in support of his claim. That’s plumb backasswards.

Worse, perhaps, is demanding an explanation of why he has trouble remembering to take his medications. Remember, §3.352(a)’s list of what might cause a need for a&a is not limited strictly to what is listed. Lately, we’ve  been seeing a&a denial logic experience mission creep. I’m seeing the raters begin to use peripheral neuropathy terms saying there’s only a slight or moderate need for a&a- not a severe need.

The fact of the matter is simple. If you’re SC for a disease injury at-or close to- a full-blown 100 or TDIU, and the doctor fills out the 2680 saying you can’t button your shirt, that is a diagnosis. Period. End of discussion. And in VA law, a claim for compensation is a claim for pension-and vice versa. VA knows this so that one-liner in there about ‘you filed for pension, dummy’ is waaaaay off base. VA now begs to differ or triage the need into the slight/moderate/severe need. Worse, perhaps, is the need to go to the BVA and get them to call bullshit on theses techniques. That adds about two years to the process and never teaches VA a lesson. They just keep doing it unless someone takes it to the CAVC and the Judges cut some precedence saying ‘knock it off.’

So, for your edification, the below RD is so riddled with errors that it reeks. VA has the ability to contact me and ask for clarification. Moreover, they have an obligation to haul this old boy in and take a gander at all his disabilities instead of doing an ACE review with the binoculars backwards from Syracuse and call it a fair denial. This is why they invented Agents and attorneys to supplement the VSOs who might otherwise get buffaloed into agreeing with their good VA rating buddies across the hallway.

redact denial a&a 11.02.2024

The good news in all of this is we’ll win. The gentleman here in question has a 100% bent brain rating supersized with a heapin’ helpin’ of TBI. His PTSD DBQ says he he lacks the ability to keep himself clean and presentable and has suicidal tendencies. They didn’t say if  his inability to keep clean was moderate or severe either. Shoot. He probably needs another c&p or two to figure that part out.