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]

This guy has the beginnings of potential to be an elder. His grip on SMC is phenomenal. As long as the loss of use of one foot.one hand has nothing to do with peripheral neuropathy, you're good to go. You cannot use any rating to attain A&A that was used in the formulation of the first SMC L as that would be pyramiding. I.E., you cannot build a case based on neuropathy and all the other disabilities to gain A&A. It would have to be predicated entirely on the heart thing and the kidneys. If the kidneys are part and parcel of the DM II, it would be best to leave it at the M plus a K because you'll end up with A&A and they'll remove the Loss of foot/hand and roll that up in the new A&A. Chances are you might get there in the future if your heart thing became the predicate for the A&A. Then you could move the neuropathy into a single disability picture and get LOU due to the sum of the DM II ratings. Bingo-two Ls and on to O> R1

While VA is certainly obligated to fit you with the "highest and best" rating they can ascertain, you have to watch out for their logic circuits burning out. I've seen them award two SMC Ks to avoid giving a L out for LOU of both feet- and the same scenario where the Vet already had A&A. They will stop at nothing to avoid O/P and into R1. I had a guy who could stand momentarily to make a transfer from wheelchair to bed. Bingo. The man can walk. He doesn't have LOU. He also has grand mal seizures. He went from M + K to R 2. You have to build them carefully. The pieces have to fit like a jigsaw puzzele- virtually an L1 +L2 = O. If L1 or L2 = A&A, then proceed to R1. 

clear prop

 

[Berta]

Yes he is Brilliant!

James didnt mention,in this recent post,  but he is the very first AO CONUS veteran and Jerrel interviewed him at the Blog Radio show a few times over the years.

How he proved exposure to the AO shows how diligence and hard work  pays off!

I am sure his BVA decision is here. AO at Fort Gordon.

Edited October 9, 2016 by Berta

[Buck52]

Yes I agree with ya Ms berta

James Cripps  knows how to lay it all out there & tell it like it is

I enjoy listing to him on the Hadit blogtalk radio show ,  a veteran can learn a lot from him  he has been there and done it.

Last time I heard him he was telling how to get benefits for a auto or have your auto fixed up to meet your disability (interesting) or get a certain amount of $$$ to have it prepared the way you need it & the'' LOSS OF USE'' I believe he called one Loss of use  ''DROP FOOT''  ect,,,ect,,,plus all the SMC Awards he has  he tells how he got them.

I wish john & jerrrel would have him on more often.

Edited October 9, 2016 by Buck52

[jamescripps2]

Thanks for the reply asknod, and the votes of confidence from Buck and Berta! Information is about the best we have to offer from our own experiences.

Quote

I have also asked the VA to substitute the 100% kidney disease as the predicate the bump to "M" instead of using the heart disease as the predicate. That substitution would be more beneficial to me because it would free up the heart disease for use as unrelated, unused, and separate distinct condition to use as the basis for awarding the A&A, therefore maximizing my benefits.

Am I headed in the right direction? What am I lacking or overlooking?

 

At the time of the decision both disabilities, heart disease and kidney failure, were available for the rater to use for the bump from "L" to "M" in compliance with 38 CFR 350 (F)(4). It would have been easier for me to show the need for A&A if it could be based upon heart disease rather than the chosen kidney disease. I have been wondering if there was a reason that the rater chose the heart disease over the kidney disease as the predicate for the bump to "M" or was it a random choice? The rater's choice of heart disease is less favorable to me in maximizing my benefits. Maximization of my benefit would have been better accomplished if the kidney disease had been used allowing for the heart disease to become the predicate in the need for A&A. 

Chronic congestive heart failure, chronic fatigue, A-fib, V-fib, blood thinners, shocks from the implanted defibrillator, chest pain, unconsciousness and other maladies could then be used in the need for the A&A. 

I ran across this court case this evening supporting my contention for the substitution in order to maximize my benefits and support my claim for A&A. If you remove the word,"housebound", and insert the words,"aid and attendance", it seems to be the answer to my question.

In Buie v. Shinseki, the Court subsequently clarified that a TDIU based on more than one disability does not satisfy the requirement under 38 U.S.C. § 1114(s) for housebound benefits that a claimant have a "service-connected disability rated as total." However, VA's duty to maximize benefits requires VA to assess all of a claimant's disabilities, regardless of the order in which they were service-connected, to determine whether any combination of disabilities establishes housebound benefits under 38 U.S.C. § 1114(s). Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). 

I hope this information will help in support of my contention and allow me load the boat with the "O" and R-1 award when the appeal is done. I filed the NOD on May 5, 2016 after being granted the M+K award, retro pay, vehicle grant w/ adaptive equipment and SAH grant. The Nod was for the reason, the VA did not infer the issue of A&A upon the granting of a new 100% P&T decision in compliance with M21-1MR. I have asked the VA to substitute the kidney disease in place of the heart disease and then use the unrelated heart disease as the need for A&A. I should qualify for the "O" because of the two "L"s if granted the A&A. I have chosen the DRO de novo route. If the decision is not favorable, then on to the board. I will be expecting retro pay back to the original date of claim for loss of use of two extremities that was filed on december 27,2011.

That's my story and I am sticking to it! 

PS  I am confident, but If you see a flaw in my contention please bring it to my attention so i might can put a bandaid on it. I am not so smug as to not listen to sound advice from anyone.

 

[Berta]

It all makes sense to me James.... then again there is no regulation that requires VA to have "sense"....

Thanks for raising Buie...a very important case.

My own experience was that they awarded SMC S posthumously for my husband but denied A & A, even though the VA van had to pick him up for VA day treatment program,as he could not drive, or see well, but he could feed himself and button his clothes. In the decisions they said the S was for both Housebound and also 100% plus 60%.

However anyone beyond S should attempt to get into a higher SMC criteria.

If I find anything at the BVA to help ,I will post the case here.

We have had SMC Ms, O's ,and R-1 vets here over the years.

[Berta]

We had a SMC  M plus K vet here:

 http://community.hadit.com/topic/61822-expert-advice-or-thoughts-on-smc/?page=3

James probably knows all in this link  but it might help others to understand these complex issues.

 

I think I SCREWED UP!

I have an appeal in because  I feel a General Counsel Pres Op (which VA refused to apply to my claim) and also refused to ask the OGC for an opinion,per my request ,involved the unusual issue I have.

I have never seen a similar case like mine.

My husband was rated thus:

100% P & T SC PTSD  Danang Vietnam USMC

100% P & T Section 1151  stroke malpracticed on by VA

10% under 1151 for HBP malpractice

30% under Nehmer for AO IHD ( they never made any statement as to the 1151 IHD( this was proven malpractice too)

SMC S …and they said both for HB and also 100% plus 60 but of course only paid one rate.

Also granted for diabetes mellitus (malpracticed too, which BVA said contributed to his death ( AO DIC award.2009.( Their third DIC award, but only one check of course)

The malpractice on this (DMII) was so bad that VA never even attempted to provide a DMII rating.He died 22 years ago this Friday so all of above were posthumous awards. ( and the FTCA settlement 1997)

 

 I think I screwed up here:

“SMC = Special Monthly Compensation

Paid either in addition to (SMC K), or in place of regular ratings (all others). There are several different levels of SMC, and several different combinations of them as well. The most common are Housebound and Aid and Attendance, both typically paid at the rate of SMC L. Higher levels of Aid and Attendance are allowed, depending on the amount of care needed by the vet. They are typically paid at the rate of either SMC R1, or R2. If you are rated at 100% for a single disability, and have another single disability that is ratable at 50%, or 100%, then you are entitled to the next higher rate of SMC. This is in addition to the additional 60% (single or combined) disabilities that jbasser spoke of. SMC is a complicated beast that is very hard to understand. If you want to learn more about it, it is governed by 38 USC 1114, and regulated by 38 CFR 3.350”

http://community.hadit.com/topic/22670-tinnitus-and-hearing-loss-claim/

 

The original SMC issue was because of 4 CUEs in a 1998 decision that the Nehmer RO awarded.

Do I understand this above link correctly????

 SMC = Special Monthly Compensation

“ If you are rated at 100% for a single disability, and have another single disability that is ratable at 50%, or 100%, then you are entitled to the next higher rate of SMC. This is in addition to the additional 60% (single or combined) disabilities that jbasser spoke of. SMC is a complicated beast that is very hard to understand. If you want to learn more about it, it is governed by 38 USC 1114, and regulated by 38 CFR 3.350”

They gave Rod 100% P & T under 1151 for stroke, and he had the 100% P & T SC for PTSD,under posthumous ratings and then the SMC S award but should they have gone higher than “S” per this link?

They only considered A & A because I claimed it and they denied A & A but awarded S. I better read those regs again.

Cripes, I thought my I-9 was perfect…the General Counsel Pres Op, the 1998 decision that this arose from,  the 2012 award letter, and an excerpt from M21-1MR were all I thought I needed.

I might have to add an addendum….Yum Yum if I do. Or file another CUE.

 

Or maybe I am reading this wrong.

M21-1MR for all you 1151ers out there clearly states that any 1151 compensated disability must never deprive a veteran of any direct SC they are due.

The OGC Pres Op is -08-97.As I understand it, the Pres Op makes the same point. I fully believe they still owe me some Cash but I have researched for years on this  and VA has never dealt with this type of claim before.

 

 

 

 

 

 

 

Edited October 13, 2016 by Berta