diabetes SMC "M" award

[jamescripps2]

Previously I was service connected for,

100% p&t for AICD implant. 100% p&t for class III kidney disease, 50% neuropathy right upper extremity, 40% neuropathy left upper extremity, 40% neuropathy right lower extremity,40% neuropathy, 30% for severe anxiety and depression, 20% type II diabetes 0% for chloracne, 0% for ED.

I was rated and being paid as a 100% veteran with spouse. I had an "S" award and one "K" award.

 

On a new rating decision dated August 2015, I was awarded Loss of use of upper right extremity and loss of use of right lower extremity. They combined the two loss of use awards at 50% each for a total of 100% for both. The loss of use of two extremities generated an "L" rating.  I was given a ( P-1) bump to the next higher rating of "M" on account of the independent 100% rating for the implanted AICD.  The "K" award for ED was continued.

 

My question, 

A "K" award for loss of use of a hand and another for a foot was not mentioned in the decision. From what I read at 38 CFR 3.350 The "K" award is payable in addition to the basic rates. Should my correct rating be at the level of "M", veteran with with spouse, plus one "K" for the ED? Or should my rating be an "M", veteran with spouse, rating with three "K" awards, two for loss of hand and foot and another for ED? 

I know that a veteran can have a maximum of three "K" awards. From what I read at 38CFR 3.350 a "K" award is payable in addition to the basic rate of "L" through "N" provided the total does not exceed the monthly rate set forth in 38 U.S.C 1114 (o).

The only thing that I can think of where I might be missing the point is if using the "K" award in addition to the "M" might be considered by the va as pyramiding? What am I not seeing when I read the first paragraph at 38 C.F.R. 3.350?

I was also awarded the automobile grant w/ adaptive equipment and the SAH grant.

[Berta]

LOL!  38 CFR in your private porcelain facility     He He   ...... I love it!

Heck they sure tried to put me into the crapper many times.

James I would continue anything you feel should be claimed........because we never know what will actually cause our demise...I hate to put it that way....but we never know......

I have an appeal that I cant wait to get to the BVA ( of course I need to live that long) because VA never had anyone , as far as I could tell doing research on the issue) who had ever used this specific VA OGC opinion , the way I did, maybe because there is no other situation like mine documented anywhere at the BVA or CAVC. I digress........back to your situation....

There is a case I read (maybe at BVA) whereby a vet was mere weeks from 100% P & T for ten years and he dropped dead and the spouse then had a hard time getting DIC, if she ever did..as.he might have had a NSC cause of death or with an NSC listed in the death certificate as a substantial contributing factor,to death but without the SC rating,..... I need to find that case again.

.....................

The Appeal I have (still at my VARO) raises the fact that they failed to use a specific  OGC Pres Op and failed to ask OGC ,per my request for a new opinion, if they could not understand the one I sent.

The Opinion is clear to me as to what it says but it was the third one OGC issued years ago because apparently ROs could not understand two previous OGC opinions re: 1151.

Whether I succeed or not ,at least I tried,

but if I succeed it could impact other 1151ers allowing them to file CUE on many past 1151 Awards. 

At some point , for us advocates , who are also hardcore claimants, the potential monetary value of our  personal claims often means very little.

.because it is the knowledge we get from every claim we file, that has tremendous value and monetary worth to others here.

 

 

 

Edited December 15, 2016 by Berta

[Buck52]

Mr Cripps 2

I am glad you got SMC' awards you def deserve them....

I'm not sure how to answer your question  maybe asknod will chimme in here!

or you could go to asknod Blog he has a good write up about SMC's

 

Thank you for your service Buddy!

 

...............Buck

 

[broncovet]

James 

    SMC is very complicated.  However, based upon this training by NVLSP for service officers, you should get 3 K awards, assuming you meet the criteria below for "loss of use".  That is  the way I see it.  

http://www.purpleheart.org/ServiceProgram/Training2010/Tuesday Training Outline NVLSP.pdf

In part, 

SPECIAL MONTHLY COMPENSATION (VBM 5.6) I. General Information About Special Monthly Compensation (SMC) (38 U.S.C. § 1114) A. SMC is paid in addition to the monthly service-connected compensation that is paid by assigning an evaluation under the Schedule for Rating Disabilities (SRD) in Part 4 of 38 C.F.R. B. SMC compensates veterans for the service-connected loss or loss of use of body parts or functions 1. Payments are for personal inconvenience, social difficulties and the severe nature of the disability C. If any evidence shows possible entitlement to SMC, VA must consider SMC entitlement D. Veterans mistakenly denied SMC may be awarded retroactive benefits if they can show clear and unmistakable error II. Basis SMC Levels A. SMC(k) – Includes Loss or Loss of Use, Aid and Attendance Benefits, and Housebound Benefits (38 U.S.C. § 1114(k)) 1. Basic Information a. Entitlement does not depend on the amount or severity of loss or loss of use b. SMC(k) is paid in addition to other disability compensation c. Effective 12/1/09, the SMC(k) benefit is $96 for each loss or loss of use 2. Loss or Loss of Use of a Creative Organ (38 C.F.R. § 3.350(a)(1)) © NVLSP 2010 5 a. Veterans are entitled to SMC(k) if they have lost or lost the use of: i. One or both testicles ii. One or both ovaries iii. Another creative organ – a body part used for reproduction b. Veterans who lost the use of a creative organ prior to service, but have a service-connected loss of the organ are entitled c. Veterans who undergo voluntary sterilization prior to or during service, but later have a service-connected loss of the organ are entitled d. Loss of use secondary to service-connected impotence entitles a veteran 3. Loss or Loss of Use of a Hand or Foot (38 C.F.R. § 3.350(a)(2)) a. Veterans are entitled to SMC(k) if their hand or foot does not effectively work i. They cannot grasp or manipulate objects with their hand, or ii. They cannot balance or push off with their foot b. Automatically proven if the veteran has: i. Extremely unfavorable complete ankylosis of the knee (it is stuck in an unfavorable position and cannot bend) ii. Complete ankylosis of two major joints in an arm or leg iii. Shortening of a leg by at least 3 ½ inches 

[FormerMember]

If you had 0% for ED, were you being paid the K for loss of use of creative organ? If so, it works like this. Yes you can have 3 Ks simultaneously. If the K was for ED, that's it. You cannot be given Ks for the loss of use of a hand or foot as those are  the prime ingredients for your L rating that has been bumped up to M via 3.350 (f)(4). If you had loss of use of one eye and your buttocks, you could have the 3 Ks. Under no circumstances can one of the ingredients for L also be a predicate for a K as that would be pyramiding. 

[jamescripps2]

Thanks for the replies Buck 52, Broncovet and asknod. As I read the regulation on pyramiding I find no reference to anything to do with pyramiding other than two diagnosis being given for the same condition causing an overlap.

§ 4.14 Avoidance of pyramiding. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  

asknod, I know that you are a very knowledgeable veteran when it comes to VA benefits,laws and regulations. Where did you get the information on the ingredients of the SMC and how it disallows the "K" award as an additional award? Is there another regulation on pyramiding that should be as plain as the nose on my face that I am not seeing or am unaware of that could directly, supersede, call into question, negate or otherwise overrule 38CFR 3.350? If there is a legitimate and understandable way for the VA to override and deny the entitlement to multiple "K" awards as additional awards to  SMC "L" through "N" surely the regulation could be cited as a matter of law that would give the VA the authority to override 38 CFR 3.350.

§ 4.14 Avoidance of pyramiding. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  

 

broncovet, I would be very interested in the read by the NVLSP that you posted but I can't open the link.

It could be, and I am thinking, that if there is no regulation or law that gives the VA the authority to deny the "K" awards in addition to SMC "L" through "N" as laid forth 38 C.F.R. 3.350 it needs to be challenged.

I am of the opinion that just because that is the way the VA has always handled it don't mean that it is proper procedure according to the laws and regulations that govern the issue. It could come down to a difference of interpretation of the law.

Recognizing and witnessing all of the knowledge and talent that follow this forum,I am hoping that with your help, we should be able to bring the issue to an equatable conclusion supported by applicable regulation. I really don't want to challenge the VA on the issue by climbing back into the hamster wheel again, but I can if need be.

 

[jamescripps2]

 Under no circumstances can one of the ingredients for L also be a predicate for a K as that would be pyramiding.

asknod, if you can support that statement as a matter of law, I will be convinced and I am finished. You can't just pull a statement like that out of thin air and expect it to stick!