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]

You forget one thing. 38 USC is the statute concerning the benefit. 38 CFR is the regulation promulgated enforcing the statute on a day to day basis as interpreted by the Agency and Secretary. M 21 is merely a manual on how to employ 38 CFR. It is given absolutely no deference on de novo review by the Courts. In law, if the regulation is too vague, it will be interpreted to the Veteran's benefit. It is presumed that the Secretary knows how to write his own regulations. It makes no difference what the M 21 says. You should read the M 28 R which is packed with many contradictions to CFR and USC. 

All you have to do is prove ambiguity of 3.350(f)(3)(4). If there is no guidance, M 21 cannot be used as the predicate. It becomes a matter of first impression at the Court once presented and boy howdy would I present it just to get precedence if possible. Loopholes like that close shortly after being revealed. I have two 100% schedulers and an addition 60 for anemia or cryoglobulinemia and a skin rating for 30 that would give me an extra 50 so I'd sure be interested if they read it leniently.

(f) Intermediate or next higher rate. An intermediate rate authorized by this paragraph shall be established at the arithmetic mean, rounded to the nearest dollar, between the two rates concerned.

(3) Additional independent 50 percent disabilities. 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, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more 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. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.

(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.

(i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114 (l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use.

(ii) The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.

 

I'm an optimist. All I see is that your two one hundred percent ratings cannot form the predicate for the 50% nor can loss of use of lower extremities be counted as a 100% schedular if you try to use peripheral neuropathy of any extremity. Everything must be separate and distinct. Hearing and tinnitus ratings could be combined to get the 50% but you cannot add six disabilities together to get a 100% aggregate. As for any language forbidding the award of both (f)(3) and (f)(4) simultaneously, I see no bar to it whatsoever. Which is not to say you won't have to appeal. 

[jamescripps2]

I also an optimist and a opportunist. There are about three angles at play in my claim for the maximum benefit at "O" and R-1. I will just have to wait and see which road the VA chooses to go down. I think the VA already realizes that I am not just another speed bump. Not that that matters at all.  I am in no hurry. I don't want to appear as being smug but I am confident in my contention, my ability and the evidence in the claim, not to mention the encouragement and help from the folks at this hadit forum.

[jamescripps2]

This comes from CLE class material and the seminar given by the State of Oregon legal bar association.

M21-1MR VA Claims Adjudication Manual Rewrite Usually just called M21. The “How-To” book for managing and evaluating claims. Its provisions are substantive and have the same authority as VA regulations.

If this is the gold standard it will help my contention, albeit the M-21 statute that I need and referred to in my NOD is contained in the  USC and the CFR also, just not as clearly written as M 21. It requires the VBA to infer A&A upon all new awards of 100% P&T decisions. ie loss of use of a hand and a foot. That is the basis of my NOD.

[FormerMember]

CLE doesn't trump the CAVC and the CAFC. When, and if, you get there you'll find that out. The CAVC, especially, has many cases that eviscerate the M 21 and grant it no deference. As an example, read the new M 28 R. It says avocational pursuits are extremely limited. There are 2,700 slots open to ILP each year. Last year, only 1.426 were used. Never presume anything with the VA. I caught them lying to me in 2008 when they suggested filing new claims after I had 100% P&T was "foolish because there is no higher rating". This came from a RVSR verbally. If they are so legally challenged they cannot read the Statutes and Regulations, why would a Manual improve the process? The fact is, the M 21 is computer-generated in most cases of adjudication. Thus the old adage, Garbage in, Garbage out holds true. If you input the wrong parameters, you answers will be incorrect. 67% of all VA adjudications are either wrong or partially so. 

[Berta]

"67% of all VA adjudications are either wrong or partially so."

well put Alex, and our grateful nation pays for that high level of incompetence.

 

[Buck52]

So if I was to file for two more claims   on top of what I get now  100% with  SMC S.... its possible to get more compensation? with E.D. CLAIM  and Sleep Apnea  if approved?