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.

[jamescripps2]

ok Berta, I'll take a shot at answering your question as I understand it. The answer is just as complicated as the question. If I am wrong, I am sure that asknod or one of the other powers that be will come along and whap me up side of my head!

If you are at 100% schedular or IU, an additional 50 % will get you nothing more in the way of money. That extra 50% award is worth fighting for and just becomes a building block that might become useful at a later date.

If you have a 100% award and then another separate and distinct 100% award, that will get you an "S" award for housebound by reason of the first 100% plus an additional sixty% = the housebound pay rate.

If you are awarded SMC for A&A, that earns you an L award. Now, by law, you can't have a housebound "S" award and A&A at the same time. The A&A pays the greater greater amount of the two, and is the more favorable award of the two, so, the A&A is awarded in place of the "S" award.

Now that you have the SMC "L" award, you can use any other unrelated 50% award to advance 1/2 step. In this case to the "L" and1/2. this is called a P-1 award.

If you are at the "L" level and you have another separate and distinct schedular 100% P&T award you can advance one whole step. In this case, from "L" to "M". This is called a P-2 award.

The advancement using the P-1 or P-2 award can only be used one time for the advancement either to the next half step for the 50% or whole step for the 100% award.

Any higher awards require loss or loss of use of two limbs or loss of, or loss of function of internal organs, blindness or any of the malades listed at CFR 3.350.

K awards at $103.23 per month also come into play for loss of, and loss of use of an extremity, organ, etc as outlined in CFR 3.350 but can later be lost when they are gobbled up to avoid the pyramiding rule as your issues are used as the predicate for higher awards.

Hope this helps!

 

[Berta]

Thanks James...I am stuck on 100% plus 60% is obviously the SMC S award.

"If you are rated at 100% for a single disability, and have another single disability that is ratable at 50%, or 100%, then you are entitled to the next higher rate of SMC. "

If one has the 100% and an 100% additional independent of the initial 100% ,and has "S", then what would be the "next higher rate"...maybe this is just an opinion from above that I quoted...I really need to read the regulations when I have time..

and I checked BVA yesterday and still nothing yet on any vet with 2 separate 100% awards....

[Buck52]

I'm not sure I am understand this??

Quote from James Cripps

''If you have a 100% award and then another separate and distinct 100% award, that will get you an "S" award for housebound by reason of the first 100% plus an additional sixty% = the housebound pay rate.''

They may have my ratings all wrong then but I'd be a fool to correct them on it?

Here is how they rated me with SMC S 1 H.B.

I was rated TDIU P&T 90%  profound hearing loss PLUS 10% Tinnitus  &  with an over all combined rating at 90% BEING PAID AT THE 100% RATE 

I had this rating for 14 years,  last year I filed a PTSD Claim, was awared 70% PTSD.

When I got the 70% PTSD they inferred the SMC S 1  H.B.

statutory rating because they said I met the criteria for the SMC.

Heck fire its another 347/with spouse month on top of my 90%combined rating of TDIU P&T

So I am not sure if I would be IU or not?  they now have me rated at 100%  shows the little blue circle 100%.& they say my rating is 100%...I don't think that would be a typing error would it?

I just sent off a IU Questioner to be on the safe side..so until they send me a letter letting me know I don't need to send in the employment questioner...I think I better keep sending it.

jmo

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

[Berta]

The actual regulation says this:

(4) Additional independent 100 percent ratings. 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 independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. "

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=0aca7422fe8de29755d7f3e56d27291f&rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#se38.1.3_1350

I think I will play around with this and look over my Nehmer award.VA denied A & A but only because I claimed A & A.They did not define or consider "entitlement to the next higher statutory rate" after the "S" award, in the Nehmer decision. The regulation above also does not define the 'next higher statutory rate' as A & A and would have stated it that way if it did mean A & A ,so that leaves wiggle room for claimants.

 

 

[Buck52]

The only way I can figure out how /why they rated me the way they did  is there saying I am 100% because I am being paid at the 100% rate  not only me but thousands of other vets as well

90% over all rating  and a 10% added  in for tinnitus in does not make a 100%rating? so how else did they do it??

each one of my disability's was separate from each other   other than the Hearing loss..but the tinnitus came a year later than the hearing loss...so Hearing loss was granted at 50% in 2000, Tinnitus was granted in 2001, increase in hearing loss for 50% to90% in 2003 this is when I got TDIU P&T.

2015 GRANTED 70% FOR PTSD.

[jamescripps2]

16 hours ago, Berta said:

Thanks James...I am stuck on 100% plus 60% is obviously the SMC S award.

"If you are rated at 100% for a single disability, and have another single disability that is ratable at 50%, or 100%, then you are entitled to the next higher rate of SMC. "

If one has the 100% and an 100% additional independent of the initial 100% ,and has "S", then what would be the "next higher rate"...maybe this is just an opinion from above that I quoted...I really need to read the regulations when I have time..

and I checked BVA yesterday and still nothing yet on any vet with 2 separate 100% awards....

Think of it like this, there are two separate worlds in the va compensation picture. The first world contains the awards of 10% through 100% and can include SMC awards of "K" and "S". The second world contains the special monthly compensation rates along with the higher rates of A&A at R-1 and R-2.

To simplify, and to try to understand what we are talking about, as far as VA compensation and special monthly compensation are concerned, lets use the United Stated Code (U.S.C.) and try to understand how it relates to the Code Of Federal Regulations (CFR). The letter awards are derived from the paragraph in which they are described in the U.S.C.

 Compensation and special monthly compensation rates as described by, and seen in light of the United States Code is easier for me to understand.

A = 10%

B = 20%

C = 30%

D = 40%

E = 50%

F = 60%

G = 70%

H= 80%

I = 90% 

J = 100% 

S = Special monthly compensation, (extra payment amount), for statutory housebound. Can also be paid for any 100% award plus another 60%.Disability compensation resides in the first world, (green world) along with SMS "K" and/ or SMC "S".  Housebound and aid and attendance cannot both be drawn at the same time, so when the A&A is awarded it is in place of the housebound award, not in addition to the housebound,(S), award.

K = $103.23 per month added to an award for loss of or loss of use. SMC K can reside in either the first world or the second world, (Green or red). The k award is paid in addition to any other compensation or SMC award including "S" but can be lost to avoid the pyramiding rule. (pyramiding is another discussion topic in itself)

____ At this point the vet now cross over from the first world to the second world____

    Only SMC resides in the second, (red), world which includes all ratings for A&A.

"L &1/2"  granting regular A&A is an "L" award. Loss of, or loss of use of two extremities is also an "L" award.

"M"

"M &1/2"

"N"

N &1/2"

"O" Maximum rate

"P" no longer used, same rate as "O"

"T" for TBI

R-1 Is Paid for the need of a higher level of A&A than regular A&A. Vet must qualify for regular A&A and have at least a SMC "O" award to even be considered for this rate.

R-2 Is Paid for an even higher level of A&A where professional care by a licensed medical professional is required.

The 50% and 100% awards as described at 3.350 F(3) & F(4) come into play is only after a vet is awarded SMC at the "L" rate or higher and can only be used one time.

The actual regulation says this:

 Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n)  Note, 38 CFR 3.350 pertains to special monthly compensation, not to the regular rates of compensation of 10% through 100%. See 38 CFR F(3) & (4)

Having two separate 100% ratings will get a vet an "S" award but no higher because it meets the 100%+60 rule and with 40% unused change back that is actually not spendable by it's self, but that 40% is a building block that might come in handy later on when combined with future awards. see U.S.C. 1114(s)

100% plus 100% = "S", another 100% added to that will not gain anything, nor will another 100% or the next. Those extra 100%s' can be put to use only after you are awarded an "L" or better, but then you will loose the "S" for the higher rating of "L". You might also have to drop some "K" awards along the way if they are related to the 100% building blocks used as predicates for the SMC letter awards. Think of those extra 50% and 100% awards as dollars. Each one of those dollars can only be spent once and it is used up. You cannot buy two items with the same money. See CFR 350 F (3&4) also see U.S.C. 1114(K)

I hope this is helpful, but like I said, the answer to your question is more complicated than the question. Wow!

Edited October 15, 2016 by jamescripps2