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

[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

[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

[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

[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