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.

[FormerMember]

Anyone with your mettle who jumps through the SAH hoops for a new dwelling can get to SMC O if---a big if---you qualify for it.Getting to SMC L is merely the first tipping point in a long medical process of going downhill. Many do not realize all the injuries/diseases you present to qualify for SMC have to be service connected in order to advance to the ultimate level of R2. I can't count how many Vets show up with a wheel barrow full of stuff that  eminently qualifies them for the higher reaches of SMC but few of their ailments are SC.

The gist of getting to O is simple. You need two elements of all the possible qualifiers among SMCs L, M and N. Any two will do. In your case, with two true 100% schedulars (or more) you advance to M as a "bump". You still need two of the enumerated disabilities to proceed to O. Nothing can help you make the jump without the two. Having thirty 100% disabilities or 8 Ks is not going to be the magic "kicker". The higher SMCs all hinge of loss of use- usually an extremity that aids in putting a spoon in your piehole, wiping your butt or combing your hair. If you're in a wheelchair due to loss of use of the lower extremities and collecting SMC L with an added bump to SMC M via another 100% rating, you still need some essential disability involving a loss or a situation creating helplessness. If you are capable of performing the activities of everyday living in a wheelchair and have 10 100% disabilities and all 8 Ks, you still do not qualify for SMC O. 

Special Monthly Compensation, after SMC S, or the bump (or half-step bump from an added 50% or more) you get from having another 100% disability to M, is not predicated on how much larger your rating is. I'm 100+100+60+30+10 and I still do not qualify for L. I pray I never will but I'm a pragmatist and know some day I'll go down the tubes. I'm "prepositioned" for that eventuality and will step right into M when it happens. Nevertheless, any advancement upwards to N or O (or R1/R2 as far as that goes) hinges strictly on my inability to attend to my own needs. 

For you to qualify for O, you need to peruse 3.350 and 3.352 from stem to stern and review each and every legal requirement (read qualifying disability or loss of use of) to obtain L, M or N. If you can make a good case for suffering two (or more) and it is supported by  your STRs, you win O. In addition, SMC is awarded from the date it can be ascertained that you began to qualify for the entitlement. When I finally won my claims in March 2015 after the Extraordinary Writ, it was clearly obvious that I was entitled to SMC S all the way back to 1994. They didn't do a Fenderson staged rating and try to determine exactly which day I became eligible; they simply went from the date I went over 100+60. 

In your case, the rater's scheme to revamp your claim into a "reopen" versus a NOD is simple. They want to send it through the pipeline again from the front door. They are geared up for this now since the Allison Hickey 125-day/98% accuracy mantra and it truly is the fastest way to get there. I bet the guy thinks he's going to smoke you for the retro but VA raters are d-u-m- (dum) about SMC. If they were ill-informed or sketchy on it, I'd throw in the "b" after dum and give them the benefit of the doubt.  Even if you somehow can attain SMC O, it has to be paid back to the day your evidence supports it-period. Remember, you can never "lose" SMC retro. You might have to fight like the devil for it as I did but when you prevail legally, they pay.

I see you are falling into the VSO "reconsideration" faery tale. James; there just is no such vehicle in the VA Regional Office that approximates this. If you appealed and lost to the BVA, you could submit a Motion For Reconsideration (MFR) before an enlarged Board of three Veterans Law Judges (VLJs). Other than that, if you hang your hopes on this mirage and fail to file the NOD within one year of the denial, the claim dies. With a claim for a higher SMC, this technically is not true. Remember I mentioned above that it (SMC) is due and payable from the date it can be ascertained it's owed. Getting the RO to see and acknowledge this may require a NOD but that is the only way to get there. I suggest the traditional appeals path when you do. The level of SMC intelligence available at the RO s is nil.

SMC is so misunderstood that it is rarely adjudicated correctly. VA raters tend to try to input the parameters into the M 21 maw and expect a cogent, correct answer. The M21, regardless of what anyone has ever told you, is an aid to adjudication-not the law. As with any publication, errors abound. Recent decisions about SMC S in Buie v. Shinseki precedence still have not been upgraded and result in continuing errors on it. As for CUE, I doubt anything VA does is CUE. A mistake made twice is a conscientious decision in my book. Best of luck, sir.

Edited January 7, 2016 by asknod

[jamescripps2]

Thanks for the input asknod. 

A call from the RO to my CVSO office today revealed that the case has already earned some attention. The remark was that it may not need to be reopened but indeed reconsidered at the local level. The ro person also remarked that, We may all learn something from this one"! I will keep you in the loop sir, as the claim advances. I am fortunate to be able to discuss such a complicated issue with someone who possesses your insight into SMC related matters. Thanks again.

[FormerMember]

R/T. I call Banana Smoke...

[jamescripps2]

For sure, I am going for the "O" and at the same time asking for R-1. The NOD and paperwork have been submitted and I am confident.

[jamescripps2]

asknod, I had never taken a trip to your website before spending some time there this evening. My comment is with reverence, WOW!

Thanks!

[jamescripps2]

Probably a question for asknod but all opinions will be appreciated.

I have a scheduler 100% P&T award for loss of use of one hand and one foot. That equates to an "L" award. If I am later granted A&A, which is also an L award, will the two separate L awards meet the requirement of two awards between "L" and "N" in order to qualify for the "O" award?

My present rating is M+1K because of the bump from L to M for 100% heart disease to include an implanted AICD and congestive heart failure.

Also, I have a 100% P&T for kidney disease and many lesser scd conditions, diabetes@ 40%, pn x four limbs @ 40,40,30,10, mood disorder @ 30% etc. I am thinking that the multiple disabilities, when considered as a whole, might be considered as a combination of disabilities so as to constitute helplessness. The 21-2680 was completed by my VA PCP in my favor. The ultimate goal is an "O" award and R-1.

I have also asked the VA to substitute the 100% kidney disease as the predicate the bump to "M" instead of using the heart disease as the predicate. That substitution would be more beneficial to me because it would free up the heart disease for use as unrelated, unused, and separate distinct condition to use as the basis for awarding the A&A, therefore maximizing my benefits.

Am I headed in the right direction? What am I lacking or overlooking?