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]

This is a question for asknod and anyone else who might wish offer an opinion. I am seeking advice from those who know about SMC before I finish tweaking and submit the NOD.

Just to recap from this thread, in December 2011, I filed a claim for loss of use of right hand and right foot. I asked for the vehicle grant /w adaptive equipment and the SAH grant. On 8/26/2015, I received a decision granting all of the above issues. Loss of use of the two extremities was assigned as a 100% grant with an "L" rating. Another preexisting additional 100% P&T granted in an earlier decision, for a unrelated heart disease issue was used as a P-2 bump, one whole step to the "M" level. I also retained an earlier "K" award for ED. My final rating became "M" plus 1- "K". Paid as a veteran with spouse.

In addition to the above disabilities and as due to prior decisions over the years, I have another 100% P&T award for stage III kidney disease, 40% for left upper extremity neuropathy, 40% for left lower extremity neuropathy, 30% for Severe Anxiety and Depression, 20% for Diabetes, 10% for a hand and foot fungus and a 0% for chloracne.

Not wanting to seem ungrateful, I plan to send in a NOD asking for a DRO reconsideration on the decision based upon the fact that the VA failed to apply the mandated statute under M21-1MR subpart IV, directing the VARO to consider SMC A&A as an inferred claim when any new 100% P&T grant is made.

I am asking that the VA  consider and award the grant of A&A based upon the evidence of record at the time of the decision showing a clear need for assistance in my every day activities, not solely due to the loss of use but as due to my multiple service connected disabilities. I am also sending a 21-4138 explaining each and every need of assistance in my daily living activities as it relates to grooming, eating, keeping clean and presentable, ambulation and medication management. I also am sending an additional medical opinion explaining my need for A&A.

I am asking that if I am indeed granted the A&A that I also be granted the rating under "O", due to two or more separate and distinct ratings between the level of "L" through "N1/2". It is also my contention that my general medical service connected conditions when considered as a whole should dictate the need for the A&A and thus generate an "O" rating as outlined in U.S.C. 1114 (0).

 

My question to hadit is, have I covered all of my bases, and what have I failed to think of or do. Is my NOD viable with a chance for a grant, or just frivolous?

Edited January 4, 2016 by jamescripps2

[iceturkee]

On 11/16/2015 at 4:07 AM, Buck52 said:

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

what about if you are wheelchair bound and your disabilities limit your public activities?

[FormerMember]

James, Back the SMC boat back up to the dock.

First, regardless of what the rater told you, if you have two (2) true 100% schedular ratings ( not TDIUs) for two dissimilar diseases, you get your bump up from SMC L to SMC M due to 38 CFR 3.350(f)(4). That is the legal basis for it. Adding another 100% schedular to it will not advance you to a higher rating. Now let's see how we can get you to SMC O.

You cannot advance to R1 or R2 Aid and attendance without the SMC O predicate. In order to qualify for O, you need any two of the disabilities listed in L, M or N. It makes no difference as long as they are separate and distinct. If you have two, and one is Aid And Attendance at the SMC L level  due to some disease or injury that puts you at risk for your well being (helplessness), then you can advance to the SMC O rating. If you had loss of use of your lower extremities and are helpless, these two disabilities qualify you for O. But there is a bump codicil that also allows you to be considered for R1 or R2 when one of the requirements of O is helplessness. This is the only instance I have ever seen where pyramiding is allowed.

Regulations provide that where a Veteran shows entitlement to any two SMCs at levels (l), (m), or (n), entitlement to SMC (o) is established.  38 U.S.C.A. § 1114(o); 38 C.F.R. § 3.350(e)(1)(ii). To wit:

 

(e) Ratings under 38 U.S.C. 1114 (o).

 

(1) The special monthly compensation provided by 38 U.S.C. 1114(o) is payable for any of the following conditions:

 

 (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance;

(ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n);

(iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less.

(iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less.

SMC (o) can be arrived at a third way via 3.350(4). When a Veteran suffers the loss of use of extremities and is also helpless, they are entitled to SMC (o) as well. 3.350(4):

 

(4) Helplessness. The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. (emphasis added)

Again, the argument does not end there. Entitlement to SMC (o) meets the threshold requirement for entitlement to SMC (r-1).  The law states that when a Veteran is entitled to SMC (o) (or payment of an equal rate under SMC (p)), and establishes a factual need for A&A, entitlement to special A&A is demonstrated.  38 U.S.C.A. § 1114(r); 38 C.F.R. § 3.350(h).  The need for A&A need not be independent of the underlying disabilities used to meet the threshold eligibility requirement, as the regulation provides an exception to the pyramiding rule.  38 C.F.R. § 3.350(h)(1).

VA is going to run you under the microscope if you want R1 or R2. The requirements are strictly adhered to. SMC law is not like Claymore rules. You can't just get close and succeed. You have to be bonafide bedridden if you choose that one as a qualifying disability. Most get there via the loss of use and helplessness combination. For the record, ignore the M21. It is a guide and little else. VA raters try to use it but it's computer driven ergo garbage in=garbage out.

I have a friend in Manila trying to get this. He's 640% disabled-loss of use from waist down (paralyzed), bedridden (documented w/ bedsores), loss of use of rt extremity, grand mal seizures with no warning. He has a "caregiver" he's paying out of his SMC M. He asked for R1/R2. VA used question 13 on the 21-2680 to bushwhack him at the C&P. Dr. said he can "balance" between transfers from bed to wheelchair so that demonstrates he has not lost his use of his lower extremities. That will give you an idea of how anal they are about this.

As for any extra K awards, they all fall out when you hit R1/R2. Best of luck.

Do not use a 4138 to send this in. Use a 2680 and have your private dr. sign it. Add in anything on a continuance sheet if necessary. Be prepared for a fight.Best of luck, sir. 

 

 

Edited January 4, 2016 by asknod

[jamescripps2]

asknod, sorry, but I needed to drag your boat back into my lake!

I thank you sir, for taking the time to help me sort out this complicated issue. I have great respect for your educated opinions related to SMC. You must have spent some amount of time in the trenches to learn, and then, keep up with SMC regulations.

On the NOD that I submitted to VA this morning, I am asking for consideration for regular A&A. Am I correct in thinking that there are three levels of A&A. The first being regular A&A, then a higher level at R1 and then an even higher level at R2?

This morning I had a service officer tell me that if I was rated under, and being paid at the rate of SMC"L", that I was already getting A&A. I disagreed.

I do have three distinct scheduler 100% P&T awards. #1, for heart disease w/ implanted AICD.  #2 for Stage III kidney disease. #3 for loss of use of one hand and one foot. I have no awards that involve TDIU.

As for VA's microscope, I have spent more than ten years under their microscope, working on complicated issues. This stuff is a breeze compared to putting together my Agent Orange inside CONUS claim. I just need to learn more and do more research in unfamiliar territory. It really makes it easier with someone like yourself to play the devils advocate in the claim. As you well know, once you start down the wrong path with a claim, it is hard to turn things back around. Again, thanks for keeping me straight.

I thought that I was finished with the hamster wheel, but I am going for the "O".

[FormerMember]

Go for the O James. There are three A&As in SMC but only two higher level ones specifically for it alone  L is often referred to as A&A for one simple reason. If you lose the use of your legs, you are unmistakably disabled and need "aid and assistance" in activities of everyday living. It's a low threshold to attain.

R1/R2 is "special" A&A. It means you require a paid caregiver who has medical training. R2 is paid when you need a caregiver with extensive medical knowledge who can supervise a day to day caregiver who is akin to a CNA. Usually, a supervisory R2 nurse would be an RN. Your wife could be the caregiver at R1 or R2 as long as she is supervised by the approved and licensed caregiver supervisor. R2 pays about $8,042 a month to offset the cost of that RN and the  24 hr. in-home caregiver for you. I have a friend who is SMC L due to loss of use of legs (total PN from DM2) He has a gal come in about three times a week to clean up, refuel the refer and do some shopping for him. He can function by Campbell's soup standards but not French souffles with asparagus w/ pesto crust. When you hit R1 or R2, you're in catheter land and incontinence. You need someone to cook your meals so you don't burn the house down. You need someone to wipe your butt and roll you into and out of the shower. SMC O is "fairly" easy to get based on the back door they built in with the SMC L A&A loophole. Most sneak in that way. VA will still microscope the pants off you for O. 

I thrive on SMC law. It's probably the most intense with more twists than the Mississippi. Far too many people are owed it who have VSOs that can't navigate it. If they don't understand it, most will lie and tell you the gravy train ends at 100%. Very sad.  Chloracne, huh? I came home with it in 72. Looked like a ton of blackheads on the insides of my forearms and behind my ears and the hairline at my back. I also have a ripsnorting good case of Porphyria and get a phlebotomy  every month. After 8 or 9, I go anemic and have to take 3-4 months off. I won a BVA claim for 100% rating it as analogous to dialysis. This sets a great precedent for others to use. Check it out.http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files5/1538035.txt

I ate AO and A blue for several years. We thought it was pretty cool beans when they sprayed it. The shit killed everything-including mosquitoes. 

[jamescripps2]

 

Thanks for the above post asknod!

IMHO the best way to go about going for the "O" award is to ask the RO for a reconsideration of the decision dated Sept. 28, 2015. That decision awarded the M + 1K for loss of use x two extremities with the effective date of . 01/01/2011. My contention is they did not follow the mandated statute to consider A&A as an inferred issue when in the case of a new 100% P&T scheduler award.

I am convinced that the RO's failure to consider the A&A, as an inferred issue, constitutes a CUE in that decision. If and when I am awarded the A&A, at the regular rate, and therefore advanced to the "O" rate because of it, that they will need to adjust the retro pay from the date of decision back to the 01/01/ 2011 date. Do you agree, or am I missing something.

I did not actually mention the phrase, CUE, on the NOD, hopefully they will CUE themselves. I don't know how much truth there is in it, but I have heard that if the term "CUE" is actually claimed by the veteran the case will automatically be certified to the BVA for a decision. I specifically asked for a DRO reconsideration of the decision, in hopes that it will be adjudicated in a reasonable amount of time at the local RO, whatever that means....

The CVSO, to whom I submitted the NOD, contacted the RO and talked to them about the NOD. They suggested that it would go quicker if the NOD was submitted as a reopened claim instead of a reconsideration. My feeling on the matter is if the claim is adjudicated as a reopened claim, I would loose the retro adjustment going back to 2011. I submitted strong medical statements with the NOD, and the existing medical  record strongly supports me, but the VA form 21-0958 from my VA PCP will not be ready for my pick up until January 15. The CVSO is holding the NOD and other submitted paperwork until I can submit the21- 0958. I agree that it should all be submitted at the same time, but I am very leary about branding the NOD as a reopened claim. If required, the retro adjustment would be more than $50,000. 

I am contemplating, in an attempt to preserve the retro, submitting a 21-4138, along with the 21-0958 and just go ahead and declare, for the record, that indeed a CUE was committed by the RO on the original decision.

I am seeking educated advice on these issues?

I am not asking for R1 or R2. I can't qualify as I don't have, at this time, a professional or licensed person assisting me. My wife's assistance is fine for now. I can't say about the future. Needing outside aid seems like it would really be an invasion of the privacy that we now enjoy, and I would like to enjoy that as long as we can.

asknod, After reading your links, I know for sure how you spent your time in the trenches. For sure, that is learning about navigating the VA system the hard way the hard way. If you, sir, can qualify for a greenhouse, surely, I can come up with SMC "O". I did qualify for "a"house". (SAH) We will break ground in the spring.

Thanks for letting me bend your ear!