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]

Looks like we lost a post in the process of changing the venue on SMC over. 

Here is the relevant passage. It helps to have a grasp of VA law and how they write their regulations. It was right in front of you. Allow me to emphasize it in red.

3.350:

(a) Ratings under 38 U.S.C. 1114(k). Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, complete organic aphonia with constant inability to communicate by speech or, in the case of a woman veteran, loss of 25% or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy), or following receipt of radiation treatment of breast tissue. This special compensation is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability, provided that the combined rate of compensation does not exceed the monthly rate set forth in 38 U.S.C. 1114(l) when authorized in conjunction with any of the provisions of 38 U.S.C. 1114 (a) through (j) or (s). When there is entitlement under 38 U.S.C. 1114 (l) through (n) or an intermediate rate under (p) such additional allowance is payable for each such anatomical loss or loss of use existing in addition to the requirements for the basic rates, provided the total does not exceed the monthly rate set forth in 38 U.S.C. 1114(o). The limitations on the maximum compensation payable under this paragraph are independent of and do not preclude payment of additional compensation for dependents under 38 U.S.C. 1115, or the special allowance for aid and attendance provided by 38 U.S.C. 1114(r).

Now I'll reduce it to /DickandJanespeak. If you have loss of use of one (1, un, nung deo, ichi) foot, you get a SMC K. If you have loss of use of both feet (2, deux, song, ni etc.) you get SMC L.  If you have loss of use of one hand and one foot, you get  SMC L.

If you have loss of one hand, you get a SMC K. If you have loss of use of both hands, you get SMC M. You have two hands and two feet. You get remunerated for a maximum of two hands or two feet. You can be blind in one eye, lose the use of a creative organ and lose one or both of your buttocks and get three more SMC Ks when you are receiving  compensation between 0%-100%  or under SMC (s) as long as it doesn't go over L.  In your case, with a bump to (m) via 3.350(f)(4), you still cannot exceed $5,075.60 (SMC (o) with your SMC Ks. But you still can only count a foot or a hand once. If you count your feet as SMC (l) and get the bump to (m) from another 100% schedular rating, you could still count a loss of use of 1 hand as a SMC K legally.

Now, put on your seat belt and stay with me, If you lost use of both hands and both feet, you would be entitled to (r-1)= $7252.63 but no Ks.

I would never pull a statement out of thin air and blow bubbles, sir. The regulation is unequivocal and clear. You have to know how to read it.

If you are single and rated 100% schedular/TDIU, you would be entitled to $2906.83. Add  SMC (s) and it's $3243.67. Now add 3  (three, sam, trois, san) SMC Ks @ $103.23 each ( $309.69) =$3553.86. SMC (l) is currently $3,617.02. You are safe. A spouse or dependents do not factor in.  The addition of a fourth K rating, however, would take you over SMC (l) and not be allowed.

Moving it forward, if you were SMC N ($4540.89) with three Ks @ $309.69, you remuneration would be $4,849.58. SMC (o) is $5,075.60 so you would still be safe.   The way it's written,  you can actually get more than three Ks between the rates of (l) up to the (n) rate ($4540.89) as long as they did not exceed SMC (o).

3.350(a) doesn't set the limits on the number of Ks per se. The break point is the SMC (l) language when you have  SMC (s) and three Ks. After SMC (l), the number allowed is controlled by SMC (o). Obviously, not that many have the Forest Gump entitlement (buttocks) or, if men, a loss of breasts.  The rest (one, eye, aphonia, ED/hysterectomy and total deafness) naturally limit how far you can go with SMC Ks.

How many do you know with loss of use of a creative organ, lost buttocks, deaf, dumb, blind in one eye and, if women,  missing their  breasts or a part thereof? There are only eight K platforms. If you use a hand and/or a foot, you are down to six. If a man, five. 

VA is not well-known for giving money away. 

Edited November 14, 2015 by asknod

[jamescripps2]

I did find this, and it seems to be the same article that was referred to by broncovet in the post above where I could not open the link. It is an exerpt from the March 23, 2010 Military Order Of The Purple Heart training by the NVSLP

 

III. Higher SMC Levels A. General Information

1. VA will not consider higher SMC levels until a veteran has established entitlement to basic SMC

2. Higher levels of SMC are paid instead of disability compensation under the SRD

3. A veteran can receive SMC(k) in addition to a higher level of SMC, if SMC(k) is based on a different condition than the bases for the higher level of SMC

 

This agrees with what asknod has said above, but, there is no reference to a law, a statue or regulation to support it. Is there an actual legal authority to overrule, negate or otherwise deny the law at 38 C.F.R. 3.350 which allows for the payment of a "K" award in addition to "L" through "N"?

I am looking for the legality of the issue. If it is just a matter of VA procedure in the way that the VA interprets the law to deny the "K" awards, it needs to be challenged in court, especially if it, as it seems, conflicts with 38 C.F.R. 3.350 and 38 U.S.C. 1114 "K".

 

[Chuck75]

"Higher levels of SMC are paid instead of disability compensation under the SRD"

Higher is a bit confusing- - - If you look at th tables, SMC-S is paid instead of the base rates. It actually is

the base rate the veteran qualifies for plus the SMC stepup from the base rate.

SMC-K is a special rate that is paid in addition to other SMC rates, and is in lieu of a scheduler % for the condition (Usually such things as ED.) 

[Navy04]

James sorry to hear of your issues. All of these SMCs are very confusing to me, but I will say that what Asknod informs us on can be taken as the Words in stone, as I have yet to find someone that knows more then him on these issues. Good luck and keep us posted. God Bless

[jamescripps2]

Ok, at this time I am convinced due to asknods kind effort to explain the issue as a matter of law contained in 3.350. It was there but I just could not put it together. 

I guess all that remains is to just settle back, enjoy my family and the rest of my life, and just move on. After ten years of doing battle with the VA it is hard to just put your guard down and just stop fighting. Unless, God forbid, I ever need A&A, I am finished with the hamster wheel.

By the way, The last of October, 2015, I did get a favorable decision on a claim for hand and foot fungus that was submitted to the RO on October 23, 2005, ten years ago. The last that I had heard of the claim it was remanded back to the RO from the BVA  on November 2, 2009, with an expedited status. It was finally rated at 10%.

Thanks to everyone here at Hadit for what you do for so many.!

[Tbird]

jamescripss2 enjoy your family and your life - you've earned it.