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]

In my own mind there is no question as to what caused my OSA. I never had trouble sleeping until I had a heart attack and bypass surgery. From the night of the surgery until now, I never was able to sleep again without sleeping pills. I was told bu the doctor before I was released from the hospital after the bypass in 1997 that I needed a sleep study and a CPAP. I put it off all of these years because I just could not imagine myself sleeping with the mask and head gear. 

Two years ago my Cardiologist told me that I should reconsider because my OSA was life threatening, I agreed to do the sleep study. It has taken me two years under the Veterans Choice Program to get the sleep study and the CPAP was issued to me last Thursday. Last night was the fourth night using the machine. Other than a dry mouth and some mask sealing problems it is working pretty good. It is just awesome as to how much better I sleep and feel when I wake up. I actually do feel rejuvenated. I think that the CPAP will be a keeper!

I intend to file the claim for OSA due to the Diabetes, heart disease and the medication side affects thereof. When my claim for increase for diabetes is granted because of restriction and regulation of activities, I will file the claim. According to ebenefits, the claim for increase for diabetes is at the, "awaiting approval of decision", phase at this time, so it should not be too much longer before i get the decision. There will be no increase in compensation if granted but it is a building block for possible future use.

My diabetes has caused all of my service connected conditions except Chloracne. The diabetes is uncontrolled and i was put on five shots per day of U-100 insulin. Lately the doctor changed my insulin to U-500. That is some dangerous stuff!  on account of the extent of the internal organ damage and other problems connected to the diabetes I have asked for an extraschedular rating of 100%. We will see how that goes, but if the veteran ask for it then the VA has to refer the isssue to the director of compensation services for consideration.

[FormerMember]

The ages-old repair order is what you need, Buck. You need that magic paper that says "It is at least as likely as not that the medications Mr. 52 is eating are having an extremely deleterious effect on his winky." VA likes to use the panacea path- "Hey, we gave you the blue pills and Winky came back to life so you have no claim. Go find a flat rock and piss on it. Next?" It doesn't work that way. Any disability has to be observed (and rated) before the  efficacy of any medication is taken to resolve it. Simply put, you do not rate on the residuals after taking the pills. VA knows this and there are several good precedental cites from the CAVC (Jones in 2012?)saying exactly that. Too bad VA can't spell CAVC.

[jamescripps2]

In October of last year, (2015) I was awarded SMC "M"+1K, Vehicle grant W / adaptive equipment, a SAH grant and four years retro. I appealed the decision after I banked my retro and got my vehicle. The reason for the NOD was that they did not infer A&A upon the granting a new 100% grant for loss of use of two extremities. They pitched me a bone!

Ok, good and bad news now, the bad first. The VARO, as a result of a DRO Denovo review, denied my claim for  SMC "O" and R-1. According to the reasons and basis given in the decision it was denied because my 21-2680 Application for A&A was not filled out exclusively for heart disease. Take a look at that form, under the circumstances and the questions asked, my doctors filled out the form as best as they could. The questions on the 21-2680 do not pertain to heart disease. The form is all about extremities and ambulation, no place for heart failure related answers. 

Now the good news. In correspondence contained in the RO decision denying the claim, the RO goes on to say that if I submit new evidence showing the need for A&A based solely upon heart disease, they would grant the "O" rating, based upon two ratings under "L", one for A&A and one for LOUx2. Pay rate will be at R-!. I will be expecting retro of sixty one months.

I contacted the Appeals team at the RO and asked them, "if I can send you the requested evidence will you make me go through a four year ride to the BVA or will you take another look at the requested additional evidence before it is certified to the BVA". i was told that if I submitted the requested information, they would quickly review the decision and new evidence at the RO.

I asked for a new 21-2680 to be completed at the Advanced Heart Failure Clinic, VAMC Nashville, based solely on the need of A&A as due to heart disease. I obtained the completed form. I could not have asked for a more perfectly filled out form along with a good letter and addendum explaining, block by block, my need for A&A as due to each existing heart failure issue that I have. Meal prep, keeping ordinarily presentable, showering, protecting against dangers of every day living, frequent adjustment of a leg brace due to daily progressive leg swelling as due to HF. My turn around time for the new evidence submitted to the RO was only three days.

Indeed it covers it all. No doubt that my next post will be made, not on the SMC "M" thread, but on the" yet unused"  SMC "O" thread. IMHO within 30 days or less . It is a done deal, not if, but when, just unsure of the time line, depending on how the holidays effect the RO decision timing.

i am studying for my VA Independent Agent Exam as I have now been approved by the OGC. The OGC almost denied me as a candidate because of my extensive service connected medical problems. Nothing wrong with my noggin. I will update as I progress.

Edited December 11, 2016 by jamescripps2

[Buck52]

Good Luck James!

[FormerMember]

OGC made me get a letter from my doctor saying the brain box was 5 by 5. They hung me out for a year but I finally got the accreditation in late July. Study, study, study. Focus on part 14,19,20 and of course Parts 3 and 4. The test is often heavy on pension law and very light on parts 3 and 4. 

[jamescripps2]

In October of last year, (2015) I was awarded SMC "M"+1K, Vehicle grant W / adaptive equipment, a SAH grant and four years retro. I appealed the decision after I banked my retro and got my vehicle. The reason for the NOD was that they did not infer A&A upon the granting a new 100% grant for loss of use of two extremities. they pitched me a bone!

Ok, good and bad news now, the bad first. The VARO, as a result of a DRO Denovo review, denied my claim for  SMC "O" and R-1. According to the reasons and basis given in the decision it was denied because my 21-2680 Application for A&A was not filled out exclusively for heart disease. Take a look at that form, under the circumstances and the questions asked, my doctors filled out the form as best as they could. The questions on the 21-2680 do not pertain to heart disease. The form is all about extremities and ambulation, no place for heart failure related answers. 

Now the good news. In correspondence contained in the RO decision denying the claim, the RO goes on to say that if I submit new evidence showing the need for A&A based solely upon heart disease, they would grant the "O" rating, based upon two ratings under "L", one for A&A and one for LOUx2. pay rate will be at R-!. I will be expecting retro of sixty one months.

I contacted the Appeals team at the RO and asked them, "if I can send you the requested evidence will you make me go through a four year ride to the BVA or will you take another look at the requested additional evidence before it is certified to the BVA". i was told that if I submitted the requested information, they would quickly review the decision and new evidence at the RO.

I asked for a new 21-2680 to be completed at the Advanced Heart Failure Clinic, VAMC Nashville, based solely on the need of A&A as due to heart disease. I obtained the completed form. I could not have asked for a more perfectly filled out form along with a good letter and addendum explaining, block by block, my need for A&A as due to each existing heart failure issue that I have. Meal prep, keeping ordinarily presentable, showering, protecting against dangers of every day living, frequent adjustment of a leg brace due to daily progressive leg swelling as due to HF. My turn around time for the new evidence submitted to the RO was only three days.

Indeed it covers it all. No doubt that my next post will be made, not on the SMC "M" thread, but on the" yet unused"  SMC "O" thread. IMHO within 30 days or less . It is a done deal, not if, but when, just unsure of the time line, depending on how the holidays effect the RO decision timing.

i am studying for my VA Independent Agent Exam as I have now been approved by the OGC. The OGC almost denied me as a candidate because of my extensive service connected medical problems. Nothing wrong with my noggin. I will update as I progress.