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.

[broncovet]

Veterans Advocate/Attorney Kraus had this to say about SMC

One veteran’s wife contacted me recently about Special Monthly Compensation (SMC), and I’m embarrassed to say I did not have a great answer for her off the top of my head. When I bounced the situation off a couple other veterans lawyers, they were also unsure of the answer.

The problem with SMC’s is that the topic is convoluted and difficult to review. If you turn to the VA.gov, the website gives you a lot of “may be eligible” jargon without providing any links or insight to the actual regulations and laws affecting entitlement. This means you need to find the regs and statutes that govern the benefit stat before you get misled.

Since the holidays are usually a slow news week, I thought looking at SMC would be a useful topic today as the subject is a bit of a black hole for many advocates.

The purpose of this post is to point you in the right direction if you are confused about where to look for answers about SMC’s. And since I need to keep it short, the only purpose of the post is to point you in the right direction – not to serve as an SMC bible.

Here is a quick overview of the compensation involved.

Veterans with debilitating injuries may be entitled to additional payments well beyond the 100% point most focus on. Instead, some veterans may be entitled to payments as high as $8,599 per month. Outside of this, veterans who require aid and attendance of a family member may be eligible for payments of $1,690 in certain situations.

So what can you get rated for?

Luckily, we do not need to rely on VA as the sole source of information on SMC’s in some archaic pamphlet.

The CFR, specifically 38 CFR 3.350 – Special monthly compensation ratings, provides a full run down of the commonly received SMC ratings. This regulation merely interprets 38 USC § 1114 – Rates of wartime disability compensation that was provided us by Congress.

And, last but not least, here is the break down of SMC rate table for payments by classification published by VA yearly.

Here is how these resources work:

– 38 USC § 1114 provides the full breakdown by subsection (a) to (t). Subsections (k) to (t) provide insight into how ratings for SMC work.

– 38 CFR § 3.350 provides deeper explanations of each subsection (k) to (t)

– VA’s SMC Rate Table provides rates for each subsection from (k) to (t)

Veteran advocate Joe Wright provided a good summary of SMC a couple days ago:

Disabilities VA can consider for SMC include loss or loss of use of a hand or foot, immobility of a joint or paralysis, loss of sight of an eye, loss or loss of use of a reproductive organ, deafness of both ears (having absence of air and bone conduction), the inability to communicate by speech, and other disabilities. The VA will pay higher rates for combinations of these disabilities such as loss or loss of use of the feet, legs, hands, and arms, in specific monetary increments, based on the particular combination of the disabilities. There are also higher payments for various combinations of severe deafness with bilateral blindness.

Additional SMC is available if a veteran is service-connected for paraplegia, with complete loss of bowel and bladder control. If a veteran is service-connected at the 100 percent rate and is housebound, bedridden, or is so helpless as to need the aid and attendance of another person, then payment of additional SMC can be considered. The amount of SMC will vary depending on the level of disability.

Pay special attention to the second paragraph’s clause, “or is so helpless as to need the aid and attendance of another person…” My hunch is many veterans’ families are struggling with VA to gain approval for aid and attendance (AA) when the disability rating is below 100%. I plan to follow up more on this topic as time allows.

[broncovet]

USC 1114 K

k) if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs, or one foot, or one hand, or both buttocks, or blindness of one eye, having only light perception, has suffered complete organic aphonia with constant inability to communicate by speech, or deafness of both ears, having absence of air and bone conduction, or, in the case of a woman veteran, has suffered the anatomical loss of 25 percent or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy) or has received radiation treatment of breast tissue, the rate of compensation therefor shall be $96 per month for each such loss or loss of use independent of any other compensation provided in subsections (a) through (j) orsubsection (s) of this section but in no event to exceed $3,327 per month; and in the event the veteran has suffered one or more of the disabilities heretofore specified in this subsection, in addition to the requirement for any of the rates specified in subsections (l) through (n) of this section, the rate of compensation shall be increased by $96 per month for each such loss or loss of use, but in no event to exceed $4,667 per month;

[FormerMember]

Loyal, check where you're downloading the 38 USC for SMC (k). It  is  $102.23 currently- not $96.00.

[jamescripps2]

The correct 2015 rate for SMC "K" is $103.23

 

SMC	Rate	Payment variation
K	$103.23	Usually added to other rate or paid as the rate when percentage is zero.
Q	$67	Paid in place of a rate.

The VA housing agent is coming back to see us after the Thanksgiving holiday to take pictures of our new home site. Our present home that I built myself, when I got out of the Army, is situated on thirty five acres. We will choose a second building site to build a new home somewhere on the same acreage.

[Buck52]

How much is SMC-S  say if the veteran is HouseBound but not in wheel chair  but his disabilities keeps him from getting out or going out in public.=only goes to VA Appointments,Dr's Appoinments  ect,,ect,,

 

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

[broncovet]

Its not unusual for a regulation to list the "old" rate and not be updated with the Cola, especially when there were no other changes to the regulation except COLA.   This said, Alex makes a great point you have to be careful about getting the new regulation, as they do change, sometimes subtly and sometimes radical changes. 

    There are times when we want to know what the "old" regulation was, especially with CUE, which has to be based on the regulations AT THE TIME.    It is supposed to work in the Veteran's favor when there is a "liberalizing" regulation change, but it is not always clear when the law changed, and, The VA is inconsistent, at best, at applying "liberalizing" changes to benefit the Veteran. 

Nehmer Vets are a great example, even tho there was a liberalizing change, Vets often have to fight VA to get what is due them.  Another example is Bradley vs. Peake.  Dont count on VA to automatically give you SMC S just because you fell under Bradley criteria, most Vets had to fight for it. 

 

    

§3.114 Change of law or Department of Veterans Affairs issue.

 

(a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary’s direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase.

 

(1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue.

 

(2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement.

 

(3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5110(g))

Edited November 16, 2015 by broncovet