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.

[Berta]

Maybe I should clarify. I used OGC Pres Op  7-90 as evidence for a FTCA offset refund. 

The deceased veteran ,my husband, had been posthumously awarded for direct SC death (2009)on top of the original malpracticed death(1997)

That meant VA owed me the complete offset amount they had taken from my DIC under M21-1MR offset and 1151 regs.

The General Counsel attorney knew I was right but they ( VA OGC attorney ) had to call my VARO to explain to them what the Pres Op meant.Again and again my RO did not want to pay me what they owed me. They even withheld too much because years before that they refused to consider a CAVC case I used that was precedent setting.

We must know the regs and VA case law in and out if we have unusual claims (and even if we have claims that  dont seem to be too  complex)because otherwise they might try to walk all over us.

I have never left any potential stone unturned regarding my claims. Never. M21-1Mr etc absorbs General Counsel Precedent Opinions into some of their VA legalese   but when you start to get really into M21- you find how they use these Pres Ops but dont want us to understand them.

Unfortunately all this crap takes a lot of time reading and re reading and thinking about it ,  to get it all. But it is never a waste of time, in my opinion.

James you sure know all that ....your award was fabulous because of

YOU!      Using the 21-4138s right at Fort Gordon for statements was absolutely Brilliant !  You left no stone whatsoever unturned. 

 

 

 

[jamescripps2]

Thanks for the clarification Berta. When I was trying to win the AO claim I kept 4138s everywhere, in the car, at home and in a satchel that I carried with me. You just never know where you will find the next piece of evidence.

[jamescripps2]

Well Berta, I read some of that OGC link that you provided but that kind of stuff really is really hard for me to retain in my pea sized brain. If I am working on a claim and I need to understand something like that it takes multiple reads to digest and retain enough information to apply in building a case. It reminds me of my learning to play music, I learned to play but I seem to have needed to try harder than anyone else, but i don't quit.

You, on the other hand seem to have been at it for a long while and maybe have a knack for it. That and the fact that you have been forced to endure and live it. I can understand that because the more you read the more you comprehend. Whatever happened to the simple life that we enjoyed before all of this VA crap?

You made a statement up post saying that prosecution of a certain claim was actually fun. Well I haven't had any fun prosecuting a claim but I'll admit, it is fun to win. Every time I help a veteran win a claim, I win again, and I can't help gloating a little bit when I beat those people at their own game. I am certain that you and others here at hadit also know the feeling. Thanks for all that you contribute!

Edited October 18, 2016 by jamescripps2

[FormerMember]

If DM2 makes Winky quit working, then yes. You would get a K award for Loss of use of. Even if you have to munch Viagra like M&Ms, you always rate the symptoms before medication

[Buck52]

James

I hear you.

I have a hard time reading something that is long and drawn out before actually getting to the point of understanding.

I always have like to be straight and get to the point when I read stuff  but with VA LAW and U.S.C. / CFR'S its hard to do that.

The interpretation is difficult for me at times.

I've always thought the VA Has the upper hand with so many provisions and Laws on their side, We vets have to figure it all out and use a lot of the Laws to counteract to get anywhere with the VA.

JMO

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

Ms Berta should have been a Attorney  she make a great one that's for sure.

[Buck52]

Alex,

I am not sure what the cause of my E.D. is?

I would think ts the medications I take for PTSD and Swollen Prostate, but through Secure Messages my PCP basically said I only take one medication that may effect my E.D. and that's my pain medications (Hydrocodone)

although I have read the side effects of some of the Meds I take can cause E.D.  but how does one go against an Internal Medicine M.D.  with the VA?

Since on these medications is when the E.D. seem to have started..  

So all I can go by is the prescription of the slidafil  (viagra) she prescribe for me/no Actual DX for E.D. plus don't I need a DX of E.D.before filing claim?

I just about ruled out the Sleep Apnea Claim...I have C-PAP and sleep better with it so I'm ok.., it can't be proved that PTSD/And Med's can aggravate or be in a relationship with S.A. or OSA problems.