I got it!

Discussion in 'General Discussion' started by robzebr, Jul 4, 2013.

  1. robzebr

    robzebr Newbie


    Its all in the terms... There is pension and compensation.

    My Dad has a pension... not from having served 20 years.. (another confusing VA idiosyncrasy).

    He has his base pension from having served at all in WWII. If he was 100% healthy he would still be getting his base pension. In my Dad's case he also sustained some injuries... none that kept him from leading a productive life but he has 2 purple hearts. He was also shelled and as a consequence over the years he lost 99% of his hearing which is documented by having gone through the whole VA claim process... Audiology tests etc...

    Because the hearing loss is service related .. he was approved for the "improved pension". He also was frostbitten and has nerve damage from the cold in the Ardennes Forest and factor in a little PTSD. He gets his base pension and the improved pension... and for the rest of this post let's call the both of these "His pension"

    He was denied A&A citing Title 38 section 3.350. His doctor wrote CHF/Afib as the answer to Queston 19 on Form 21-2680. The question asks ... (What disabilities restrict the listed activities/functions?) The activities/functions they are talking about is day to day living and taking care of ones self... dressing, bathing... etc...

    My Dad needs Aid and Attendance because of his age and the CHF. He doesn't need it because of the shrapnel in his leg courtesy of a German howitzer or from the hearing loss associated to the shelling.... She is treating him for his present primary condition as well as him being 89... older, frail, unsteady ... all the usual stuff associated with somebody needing help or "assistance" in his house.

    The confusion comes in when the VA reviewer opens up Title 38 and lands on section 3.350 where it states... § 3.350 Special monthly compensation ratings.

    Problem #1. Aid and Attendance (as it relates to my Dad) is a pension not compensation. So BANG. Right there the reviewer is in the wrong section! It doesn't matter what it says... it doesn't apply because A&A is not a compensation in the case of my Dad. Why? SIMPLE. Because this whole section talks about disabilities that occurred in wartime... the loss of a hand or foot etc.... and a whole bunch of other wartime injury scenarios..

    Within this section it references Aid and Attendance... but the references to Aid and Attendance in this context are for those people that sustained life altering injuries during their active service.

    In other words... This might be your Dads Aid and Attendance... but it ain't my Dad's Aid and Attendance!

    SO.. if the VA reviewer is using this section and not bothering to look elsewhere... and the doctor writes down CHF/AFIB on line 19 of 21-2680.... the reviewer isn't going to see CHF/Afib listed as this section is only about injuries that could have been sustained 60 years ago! (in the case of my Dad)

    So yes.. CHF developed over the last 20 years or so... is not a disability that is either listed in this section or could have been contracted 60 years ago in WWII.

    The bottom line is that they denied my Dad's claim based on information they found in the wrong section of Title 38... section 3.350

    My contention is that they should have been here..

    § 3.352 Criteria for determining need for aid and attendance and “permanently bedridden.”

    You can read it in the link below as it takes up too much room here.. but it says that the criteria is everything that you already know... dressing, bathing etc.. the usual stuff...

    This where it gets interesting...

    (b) Basic criteria for the higher level aid and attendance allowance. (1) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met:

    You have to go read it... takes up too much room...

    What it says is.... It lists a bunch of requirements that are found in Section 3.350.... the section about being injured during the war...

    So if you want the higher level benefit than you have to see if you qualify under 3.350... which is everything I said above... injuries occurring during the war which is what makes them disabled now.. which probably means they were disabled all their lives..

    If you want what they call the "regular aid and attendance" like my Dad.. who was in the war, got his "bumps and bruises" but lived basically a normal life and now needs assistance because he is 89..

    then you need to remember.... Section 3.352 and the words "regular aid and attendance"

    If you get a letter from the VA and your A&A claim is denied and they cite Section 3.350 and the issue with the vet is NOT injuries from war but just that they are elderly and need assistance... then the VA used the WRONG section to make their determination...

    So you would have to write back and tell them that you are applying for Aid and Attendance as outlined in Title 38 Section 3.352 under the heading: Regular Aid and Attendance....

    Disclaimer: This all sounds well and good... and I believe it to be accurate... The real test will come on Tuesday when I go to the Regional VA Office for a sit down...

    All I need are printouts of the 2 sections ... 3.350 and 3.352 and the letter denying my Dad's claim citing they used 3.350 to make the determination. Stopping at the bakery and bringing a box the finest they have wouldn't hurt either...


    Title 38 Section 3.350

    Title 38 Section 3.352

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