tdiu My Smc Math - Am I Close & Is There A "correct" Order?

[GlassRose1500]

Would appreciate your feedback on my math. I've request SMC evaluation in a NOD, and I need to get it right in my head, and document it with rationale so when I put it away for two years or so, I'll be able to understand it when I need it. Any thoughts or corrections would be very much appreciated!

Scenario: (am TDIU now, scenario assumes sought increases fm NOD approved as below)

1. 70% SC single condition verified sole basis for my current IU, P&T paid @ 100%
2. 40% SC single condition
3. 20% SC Lower Right single condition
4. 50% SC single condition
5. R Knee 20% (5828)+10%(5828 associated pain)+10% (5003 limitation of movement)
6. L Knee 10%+10%+10% (as above)
7. SMC Basic A&A criteria are met (I have around the clock A&A, including 18 h per week skilled Home Health, 2 visits per week by MICHM Nurse, and multiple visits per week to VA Medical Centers. I've had the Functional Impairment Measurement twice, performed by VA Occupational Specialists, and have been found to require assistance will almost all of my adls. Also, VA has issued adaptive equipement, inlcuding Hospital Bed and Power Wheelchair)
8. SMC K criteria are met (loss of use, due to disabilities, pain, and medications)
9. The criteria for A&A at the higher level are most probably met

The Math

A. If criteria for A&A at regular rate are met, then L is applied as a starting point

B. L would then be combined with #1, above (70%) for a rating of L ½

QUESTION: Would The Condition CURRENTLY RESPONSIBLE FOR PAYMENT AT 100% For IU P&T Be Applied AT THE ACTUAL RATING OF 70%, OR THE 100%

C. L ½ would be combined with #s 2 & 3, above (40% and 20%) for M

D. M would then be combined with # 4, above (50%) for a rating of M ½

E. M ½ would then be combined with #s 5 & 6, above (bilateral 20%+10%+10% plus 10%+10%+10%) for N

F. SMC K would be added to N for an addition $103.00

UNLESS: Step B, above is calculated at 100% due to its previously being the sole condition IU P&T was predicated upon. If that is the case, the math adds up to N ½ and the SMC K would cause the rating to be paid at R1, if basic A&A is established in fact, and R2 if A&A at the higher rate is established in fact (see below)

Entitlement to compensation at the intermediate rate between 38 U.S.C. 1114(n) and (o) plus special monthly compensation under 38 U.S.C. 1114(k). A veteran receiving compensation at the intermediate rate between 38 U.S.C. 1114(n) and (o) plus special monthly compensation under 38 U.S.C. 1114(k) who establishes a factual need for regular aid and attendance or a higher level of care, is also entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. (See §3.552(b)(2) as to continuance following admission for hospitalization.) Determination of the factual need for aid and attendance is subject to the criteria of §3.352.

(3) Amount of the allowance. The amount of the additional allowance payable to a veteran in need of regular aid and attendance is specified in 38 U.S.C. 1114®(1). The amount of the additional allowance payable to a veteran in need of a higher level of care is specified in 38 U.S.C. 1114®(2)

Edited December 31, 2014 by GlassRose1500 (see edit history)

[GlassRose1500]

I posted this last night, but was kindof going in circles and not making a lot of sense, so I deleted it all, but since the post hadn't been deleted by the mods, I put up the question again, in a much more streamlined fashion (I hope). Would appreciate your thoughts.

[FormerMember]

Try this one on for size first. https://asknod.wordpress.com/2013/02/27/special-monthly-compensation-what-is-it/

If you have A&A 1, you are SMC L. That L (or A&A) comprehends all those 70s, 50s, 40s 20s and 10s above. You can have 3 Ks simultaneously before you move on to M. Always remember too, if your disabilities are all of one common etiology, they are one disability in the SMC world for S. Imagine a BouncingBetty dinks you with Retained metal fragments in 6 different muscle groups. It's all one injury for SMC. You are SMC S (A&A 1) which is basically L. You have to start losing arms and legs closer to the next joint or loss of use to keep moving up the SMC ladder. The closer the amputation to your body, the higher the SMC category (i.e. L to M or M to N).

The only exception to this rule is if you have two 100% schedular rated disabilities. Thus if you are 200%, you get an auto bump from L to M, or from M to N or from N to O. The bump party stops there. If you are 50% above a 100% schedular, the bump is a half step from L to L 1/2. SMC law is the sum of the missing parts. What I can't figure is how losing a forearm at the elbow only get you another $218 a month over the loss of, say, just the hand.

Edited January 1, 2015 by asknod (see edit history)

[GlassRose1500]

Thanks for your thoughts, asknod - your info has been the bulk of my SMC research. That and reading and rereading and, well, a lot of rereading the regs themselves...

So to make sure I understand, you're thinking that this adds up to L plus a K? That the L based on A&A takes all the other ratings that I thought could be added as 50%ers off the table because the need for A&A is based upon them?

Edited January 1, 2015 by GlassRose1500 (see edit history)

[FormerMember]

1. <<<<<<<<<<<<<<<<<<SMC K criteria are met (loss of use, due to disabilities, pain, and medications)>>>>>>>>>>>>>>>. Look at the list of ailments that K is awarded for to determine this. Loss of, or loss of use of is a broad term. If you have a diagnosis, for example, of loss of use of a creative organ such as erectile dysfunction, there's a K unto itself. But if your disability is so great walking without any prosthetic devices, to include a wheelchair, it can be interpolated that you have loss of use of your lower extremities. This is what I assume provides the floor for a SMC L rating. The K for ED would be in addition to that. You cannot say that you are entitled to A&A 1 and say you are entitled to K for each leg because the L rate incorporates that disjunctively (note the word usage "or") :
3. (b) Ratings under 38 U.S.C. 1114(l). The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance.

VA's use of "and" makes a rating dependent on all listed criteria (conjunctive) whereas the usage of "or" (disjunctive) makes each item a stand alone requirement. This is where even accomplished VA raters (assuming there are some) step on their neckties.

Absent any more input from you or clarification of just what has been lost via amputation or lost usage complicates a cogent answer.

Edited January 1, 2015 by asknod (see edit history)

[GlassRose1500]

@asknod. Thank you for taking the time to analyze my situation.

I had SMC mapped out a totally different way, so thinking about loss of funtion without aids (e.g., knees with rigid bracing AND walker or wheelchair as a K, or two Ks, since bilateral) is a complete departure fm my previous analysis and will require a good deal more thought on my part.

Here was the basis of my analysis. The main question is are SC disabilities that necessitate A&A specified? I was led to believe they were NOT (rather, "need for A&A, in fact") and therefore could be utilized as I described in my first and third posts. Here was my thinking:

• I am currently TDIU, predicated on one condition (MDD @ 70%), and therefore qualify for SMC

Initially, a single disability rated as 100 percent disabling under a schedular evaluation is generally a prerequisite for entitlement to special monthly compensation by reason of the need for regular aid and attendance. Any lesser disability would be incompatible with the requirements of 38 CFR 3.352(a). See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section H, Topic 44, Block b.

However, as noted above, the Veteran was awarded TDIU that can be based primarily upon his service-connected MDD disability. As the TDIU award is premised on a single service-connected disability, the TDIU award satisfies the requirement for a single service-connected disability rated at 100 percent. See again Bradley, 22 Vet. App. at 293.

• I meet the criteria for A&A 38 U.S.C. 1114(l) (3) because of "need for A&A, in fact", not because of an accumulation of Ks. (is this a major flaw in my analysis? is A&A always predicated on one or more SC conditions?)

Special monthly compensation is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b).

Factors to be considered in determining whether a Veteran requires such are the inability to perform activities of daily living (dressing, cooking, eating, attending to the wants of nature, cleaning, and personal hygiene), a need for assistance in adjusting orthopedic or prosthetic devices, and requiring care or assistance on a regular basis to protect oneself from the hazards or dangers of the daily environment. 38 C.F.R. § 3.352(a).

I require aide dressing, donning rigid knee braces, getting in and out of the shower (which is in a tub), sitting and getting out of a sitting position, preparing meals, performing basic household chores, walking without a walker for short distances, and a wheelchair for long distances.

The VA has supplied prosthetics, a hospital bed (positioning for spine pain), handles for toilet, handles for bed and couch, cane, walker, wheelchair, tens unit, migraine hot/cold mask with water reservoir, portable toilet, hot/cold pack, analgesic cream, lidocaine patches, back brace, poles with hooks, a grabber, tools to put on socks and shoes.

When I am alone, I must stay in bed or on the couch because of these conditions (pain and risk of fall), and therefore receive 18 hours of Home Health Aide care for when my husband, who is my primary care giver, is away. They help with ADLs, escort me whenever I walk a few steps, help me with transfers, prepare meal and bring them to me, usually in bed. A VA Nurse comes to the house twice a week for an hour each visit as well. I am transported via wheelchair van provided by the VA for all of my medical appointments, and I have, on average, 4 – 6 appointments per week.

• I believed that because 38 U.S.C. 1114(l) (3) "need for A&A in fact" is the basis for L, I could then apply the conditions that were 50% alone or in combination, because:

“In addition to the statutory rates payable under 38 U.S.C. 1114(l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114”

Based on several posts and responses to my SMC questions as I tried to figure SMC out, I believed all such conditions could be used in this way, even those that were the basis for my A&A (technically spine, radiculopathy and bilateral knee)

If that is incorrect, can MDD (70%) and Migraine (50%) be utilized in this way, as they were not factors in the A&A, if A&A must be predicated on one or more SC condition?

This should yield a rating of M, with K added on?

I'm going to head on over to BVA decisions to learn how I might apply my loss of function correctly in the SMC framework. Thanks again for your time and patience.

Edited January 3, 2015 by GlassRose1500 (see edit history)

[jbasser]

I get 100 percent scheduler.

I don't see an SMC.

J

[GlassRose1500]

Since I was previously rated TDIU and that rating would have supported SMC, the increase in rating to schedular cannot negatively impact the veteran's benefits. I'll find the case and put it in... I think Berta shared it with me.

[FormerMember]

Again, you are confusing two sets of metrics. Read §3.350(i). Do not go into the minutiae of M 21. Ignore it. It's like the Mississippi River- it crosses itself too frequently and is useless except for denial rhetoric.

§3.350(i) Total plus 60 percent, or housebound; 38 U.S.C. §1114(s). The special monthly compensation provided by 38 U.S.C. §1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent, 100% refers to a schedular rating. You have 70% which is 30% less than a 'true' 100%. 38 CFR is a compendium of semantics as you can see above in discussions about disjunctive versus conjunctive linkage. The demonstrative operable verb here is "has". After 100%, you will notice the dreaded conjunctive 'and'...

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or

(2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.

TDIU is a 'rating' as determined by the Buie vs. Shinseki line of jurisprudence. So is a SMC. While a single 70% qualifies you for TDIU, it is not the same true predicate for a SMC S 100% schedular consideration but it is a decision that you are substantially unemployable and VA agrees to give you 100% compensation. There are many ratings that do not have a 100% ceiling. TDIU requires a base 40% as one stand alone minimum plus an extra combination of diseases or injuries separate and different from the primary disability equaling 70% via §4.25 math. In the alternative, a minimum of a 60% stand alone rating can suffice with no extra ratings at all. The unemployment test in Fast Letter 13-13 is the metric. See also §4.16.

SMC S can only be attained via the 100% schedular route on paper but Buie upset that. After arrival, most can qualify using the Howell v. Nicholson test to get SMC S. VA more frequently insists on the plus 60% unless you have some pretty unique disability like mine (Porphyria Cutanea Tarda). or SC for muscle/spine/cervical injury. Ignore that. If you can prove you don't drive or get out much, that pretty much screams 'housebound'. This line of legal reasoning is still a work in progress in that Buie says TDIU IS 100% for SMC S purposes which is confusing. We don't argue with success and it appears that you are on the far side of 'S' in A&A 1 based on that.

Lastly, you're confused on the bump up wording you mention. When you become progressively more ill, your debilities increase. If you went back and got rated 100% schedular on MDD (which is all I can see you using because it has a 100% schedular rating) you would still have to have an extra 50% combined ( let’s say with some DM2, tinnitus and bad knees bilaterally to get the ½ step bump up from A&A 1 ( L) to L ½. You'd need a genuine 60% of different extras to get the Housebound if you were not A&A 1. Concurrently, you would have to have two 100% schedular disabilities to move from A&A 1 (L) to M. Try to think of that bump codicil in SMC law as an extraschedular rating for being 100% X 2. You have to qualify for the L (or A&A 1 ) in order to even get in the running for the bump up with the extra 50% or 100% above the 100% schedular predicate.

Your personal A&A 1 rating is predicated solely on A&A so your back/legs/etc. have to be service connected for this to work. I've met guys who have about the equivalent of a 1000% rating but a lot of the injuries are not service connected-ergo no SMC S.

Consider SMC a gift of a grateful nation for losing a few too many pieces of your factory-issued birthday suit or being severely injured enough to have lost mobility and ADLs. TDIU is a different path to a 100% compensable rating and will always come up short of a true schedular rating. Once you head down the TDIU path, you're departing from the regular path up the ladder to SMC S. You personally have arrived via the A&A 1 path. While it is functionally equivalent to an L rating for compensation, it isn't a true 'L' rating. Your next logical step as you get much older would be A&A 2 but that will be a long way off. Eventually you will be a true "L" or "M" rating quite possibly with a A&A rider when you get much older.

Lord knows what you stepped on, ran over or crashed to earth in that boogered you up so bad. I’m sorry for you. I know what it’s like, unfortunately. I drove a gurney for a year in a VAMC. I’m on the mend but I’ll soon have the extra 100% which will still only entitle me to the S ‘housebound’ rate of pay for now. When I finally start circling the drain and need the A&A, I’ll be entitled to that bump up to ‘M’. I dread that day and that level of debility.

I'm not seeing the K(s).

VA is a lot of things but they are chintzy on the higher SMCs. Thank you for being so selfless and serving your country. Few Americans hear that call.

P.S. Buie stands for the idea that it makes no difference in what order your disabilities were granted. Thus, if you got 70% for MDD, the sum of your other disabilities , if they were different body or anatomical systems and added up to 60% or more, would entitle you to housebound. You are past that at A&A but didn't pass the M test yet. I like to "reach" with VA so I might be tempted to argue the 1/2 bump to L1/2 based on that slug of ratings you have above and beyond the TDIU. What the hey? You may get famous at the CAVC and supplant Buie for a new interpretation of the 50/100% bump logic. Nothing ventured-nothing gained.

Edited January 3, 2015 by asknod (see edit history)

[GlassRose1500]

The spine, sciatica and legs are SC, the MDD is a 70%, right where it should be. The stuff in blue in my long long long post is from two different court cases where they awarded SMC A&A on appeal with that language embedded in the analysis (that TDIU satisfies 100% in the criteria for A&A). I respect both of your opinions greatly, but am confused by the discrepencies between your thoughts and what I'm reading from appeals cases, and what both the DAV and VBA guys have advised, but I think the real problem is you can't see my entire case. My life. And it's way too much to ask - to ask you to weigh in with only a partial picture. So I'm going to put this down for now - I can't. I can't even look at it any more.

The thing is, my husband is my caretaker, and has no life. I'm early gulf war, so no stipend for him. He's 47 with a lot of things he could be doing with these good years. It makes me sick what he has to give up EVERY day. I have the A&A document from my VA PCP, and they even did an A&A C&P with favorable language. And they send home health aid and a nurse out for 20 hours per week. I have a million THINGS and like, 22 MEDICATIONS in my house to help me make it through each day. I hate every one of those meds and things and I hate ... everything.

On the advice of some folks on this site, the DVA and VBA guys the NOD is in, and in evidence gathering phase. Eventually I'll put what I have in front of a DRO and trust they'll make the call that is according to the law and where my condition fits within it.

[FormerMember]

I vote you NOD for L 1/2. Or go for the 100% MDD and shoot for M. Sorry you are pre 9/11 for Caregiver. We can thank the Wounded Wampum Program for that. Your husband, who has a destroyed life is not entitled to the $2100/mo. stipend simply because of date served. Congress never intended such an absurd result but WWP talked them into it. It's the biggest dichotomy in VA law to date. I foresee you getting it soon as the law is ripe for dismemberment or revision. Since the govt. never rescinds anything, it means we'll all get the caregiver $ some day to get rid of the inherent inequality.

[GlassRose1500]

Don't want MDD @100. Shouldn't be. So I wouldn't ask for it. Would like my life back. Would like my husband, also a Marine to have what he deserves (and I don't mean a stipend, I mean a WIFE).

Thanks for taking a look. I think it's best for me to not care about it or try to understand it any longer, at least for now.

Edited January 3, 2015 by GlassRose1500 (see edit history)

[GlassRose1500]

p.s. asknod - very sorry to hear about your PCT diagnosis. Come live in Ohio - I believe our lakeside city has the fewest sunny days in the nation - or we're a close second.

[FormerMember]

It can't be worse that Seattle. We don't tan. We rust. I do a phlebotomy every month to reduce the effects. The tradeoff is pernicious anemia and danger of another myocardial infarct. I, too, wish I had my life back building homes. Helping Vets is an acceptable, rewarding second career. Ohio is too cold. The cryoglobulinemia tears me up and I can't go out in weather below 38 F. We have a net avg. of 55 year round. I'm not big on religion but I'll have a word with the Big Guy and ask him to intercede in your case. Apparently he heard me in SEA in 1970. I called him 'Howard" back then as in "Howard be thy name."

I do agree with your sentiments that I do not want anything I'm not entitled to. I'm almost finished on the CYA project for my wife. I wouldn't want to leave her to the devices of a VFW chowderhead with a POA. SMC is underawarded and misunderstood. It's a minefield of ands and ors. No two can agree on what Congress intended. English was my major.

Best of Luck.

a

[GlassRose1500]

@asknod Hmmm, yes, our temperatures would be a problem for you from October through parts of March - though not today. It's raining...

Thanks for your analysis AND your kind words - I'll let you know how it goes. It does seem to be going a little faster than it should, by rights. It was submitted on Nov 21st, picked up for review mid-December, and a few days ago it went into gathering evidence. My VBA said it's already with a DRO (he called what for him is his home office). I am not going to hope for anything less than 2 years, because that's the going duration, but when I learned that it had been picked up by human hands so quickly I panicked a bit and tried to get a grip on the SMC component. But really I think I'm better off just presenting my case. They honestly have been pretty good to me thus far.

My apologies (to all) for getting frustrated last night.

[GlassRose1500]

An update, asknod - and I hope it finds you well. I have been decidedly unwell to the point I gave up caring about all this. Some recent developments raised my curiousity, and I found enough energy to fill you in. As always, I welcome your thoughts (as well as any of the other amazingly empathetic and knowledgeable veterans on this forum).

My NOD late in 2014 included disagreement with ratings for SC Knee and Migraine conditions, and also asked that the SMC evaluation be performed, as per a bunch of regulations which I won't rehash here.

The DRO carved out SMC as a NEW claim, saying 1) it was not interwined with the other issues, and 2) since SMC had not been adjudicated, the DRO had no jurisdiction. I wrote a very compelling response with lots of case law, which my VSO and the Local VA Rep discouraged me from sending, saying that it was compelling enough it WOULD work and the new claim would be reunited with the NOD, but that that would work counter to my interests, as the NEW claim was already in preparation for decision, and my NOD and records clearly made the case (in their opinion) for A&A. The trade off was that I'd have to likely ask for a reconsideration of the effective date, and that the whole thing might get reconfigured if the DRO elected to increase the ratings for knees and migraines.

That was a few months ago. The NEW claim (SMC only) went back to gathering evidence recently, and I am scheduled for four C&Ps this month. The C&P request form from the VA to the C&P office (which they very kindly offered when I asked what the exams were for) asks for the examiner to weigh in on Depression (I've had a few incidents since the original rating, but have not asked for nor do I believe I warrant an increase for MDD, despite these events), Incontenance issues related to medications and sedentary lifestyle (wheelchair bound fm SC disabilities), Loss of use of LE & Buttocks from Spine and Knee issues, Re-eval of Spine and Knee issues for rating purposes, and A&A and Housebound related to any of the above. No exam for migraines (though this is extraordinarily well documented so maybe they'll use those records).

My VSO feels my case has been handled with incredible speed and that the questions being asked seem to imply a positive SMC outlook. If he had to guess based on medical records and what he and the local VA fellow can see, he'd say the following - I'm not even going to try to figure out what this might mean, in terms of SMC.

1. 100% SC MDD
2. 40% SC Lumbar IVDS, etc.
3. 20% SC LRE Sciatica
4. 20% SC LLE Sciatica
5. 70% SC Migraine
6. R Knee 20% (5828)+10%(5828 associated pain)+10% (5003 limitation of movement)
7. L Knee 10%+10%+10% (as above)
8. LOU Creative Organ
9. LOU LEs
10. LOU Buttocks bilateral
11. Fecal Incontenance due to SC related Sedentary and Meds
12. A&A, Housebound in Fact

Edited April 6, 2015 by GlassRose1500 (see edit history)

[broncovet]

Maybe IM the one not getting it here, but there are TWO roads to SMC (S). One is Statuatory, the other is "housebound in fact': Statuatory Housebound is the now famous "100 plus 60" criteria. However, there is also "housebound in fact". This is the one requiring a C and P exam, where you doc states (or does not state) you are housebound.

While I realize you are referring to A and A, A and A is a step up from housebound. To get A and A (in fact) you dont need to worry about the 100 plus 60, just your docs C and P exam, assuming he says you meet the criteria for A and A.

Lay evidence (that is, you own statement) probably wont suffice. You need a doc to weigh in on whether you meet A and A criteria or not UNLESS you can qualify for "statuatory" housebound.

[GlassRose1500]

Thanks for the reply :)

I have from my PCP the form that says I require A&A and am housebound in fact. Also one of the C&P is for A&A. I would, under this scenario, qualify for statutory housebound as well. My VSO is not able to assess what the SMC results might be, in terms of how things would get bundled and stacked. I confess despite the copious reading I've done, I cannot hazard a guess either.

Edited April 6, 2015 by GlassRose1500 (see edit history)

[FormerMember]

I'm not seeing the LOU of both buttocks. SMC K is very explicit on that one. I think I see them aiming towards SMC L 1/2 with fecal incontinence with a K for LOU of creative organ.

(3) Both buttocks.

(i) Loss of use of both buttocks shall be deemed to exist when there is severe damage by disease or injury to muscle group XVII, bilateral, (diagnostic code 5317) and additional disability making it impossible for the disabled person, without assistance, to rise from a seated position and from a stooped position (fingers to toes position) and to maintain postural stability (the pelvis upon head of femur). The assistance may be done by the person's own hands or arms, and, in the matter of postural stability, by a special appliance.

[GlassRose1500]

Thanks for posting the language on the buttocks - the Rater asked the C&P Examiner to answer the question, but it was based on my loss of sensation - I have no, er, sensation related warning of incontinence, and over sensation - often my cheeks are on fire as if I was sitting in hot water, or buring with pain. Interesting.