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]

Buck, it sounds to me like your rating is right. If you were awarded a100% TDIU rating and then obtained an additional  rating of at least 60% that produced the inferred "s" award.

[Berta]

Thanks James. I concur that Buck's rating is correct.

I thought I missed something in the SMC reg above. But I didn't appeal the A & A denial.

The SMC issues I had grew out of 2 CUE claims I filed long ago.

One of the 100% P & Ts my husband had was under 1151, and the VA General Counsel has rendered 3 opinions specifically on 1151 issues, so that is why I appealed the decision....nothing to do with the SMC S award.I want the VA to read and apply one specific VAOGC pres op to my claim.

If I am wrong so be it.

My former vet rep in 1998 told me not to NOD the decision ( DIC award) because 1151s are 'different'.

He was right-they sure are...but I should have never believed him. All 1151ers have full appeal rights. 

He had just become my POA and was stunned to have the award already and had done nothing to help with this claim.

The CUEs I filed in 2003/2004 on the 1998 decision( 4 in all) were all granted...3 in 2012... by the Nehmer Phila VARO....and the fourth one last year by my RO after a fax and phone battle.

Actually that battle was fun. Maybe it was 5 CUEs....

Violation of the SMC mandate plus multiple incorrect ratings on the rating sheet.

And complete disregard for any acknowledgement or rating over the main 1151 issue. That was part of the  CUE I filed on the Nehmer 2012 decision..

 

 

 

 

 

 

Edited October 15, 2016 by Berta

[Buck52]

Well I was being paid at the 100% but as for as my rating for TDIU P&T  the VA had me down as  90% combined rating and used the extra scheduler to push me up to TDIU P&T Status. (14 years in Feb)

I hope you guys are correct .

Their suppose to do another OIG inspection at my R.O Date 04 2017 and see how many Vets were awarded the S.M.C-S that had a 90% or below rating   and probably take away the S.M.C. Because they were not actually 100%.

https://content.govdelivery.com/accounts/USVAOIG/bulletins/167ec4e

This gets more confusing  for me because at the time  they gave me the SMC -S   I had been granted a 70% PTSD rating separate from my TDIU Rating...so in all essence  did that 70% PTSD Rating boost me up to the Actual 100% rating and an extra 60% rating to boot?

All I know it says I am 100% with SMC S Award.

They have all my disability's listed and all incurred from Vietnam.

I sure hope OIG don't screw me up. ??? 

 

Also  If James Cripps  sees my post

Question for him?

What happens if I was to file a claim for E.D. and get the SMC-K?

also what would happen if I get a Sleep Apnea Claim granted?

I been told there's no more $$ in it for me?  if I get those awards  especially the Sleep Apnea.  being that I am SMC S now.

Maybe James can get back on the Hadit Show soon! I always listen to John and Jerrel & Asknod & Ms berta & Ms T from time to time..Great Information put out on Hadit Radio Shows.

Matter fact I am working on getting those two claims filed  & either way they go this will finish my claims and I'm finished with'em.

Tired of fighting 20 years with what I got.

b/c this claim thing with the VA is making me age a hell of a lot faster than I should  at 64 I look 74 eh!

I need to find the fountain of youth/if any of you guys find let me know..k    

I'd rather help other Veterans win their claims.

Anyway Thank you James and Ms berta

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

Edited October 15, 2016 by Buck52

[FormerMember]

There is also a case afoot at the CAVC of a claim I helped develop for a fellow Vet last year. His attorney maintains he can have several bumps up using the 38 CFR 3.350 (f)(3) and (4) bump method. For instance, If he has a separate and distinct 100% schedular for IHD and another for 50% on a completely unrelated disability, that he is entitled to both the half step and the whole step bump. He already has SMC L for A&A.  I do not see any language forbidding the technique. It should be an interesting ruling. They're still haggling at the early stages and a judge(s) have not been assigned yet. VA OGC blew off the Rule 33 conference about five minutes before it was due to commence. Dumb. 

[jamescripps2]

 

41.  SMC for Additional 50- and 100-Percent Evaluations Under 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4)

Introduction

This topic contains information on SMC for additional 50- and 100-percent evaluations under 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4), including information on   ·  the proper application of 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4) ·  SMC under 38 CFR 3.350(f)(3) ·  SMC under 38 CFR 3.350(f)(4), and ·  examples of rating decisions addressing the issue of entitlement to SMC under 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4).

3 hours ago, asknod said:

There is also a case afoot at the CAVC of a claim I helped develop for a fellow Vet last year. His attorney maintains he can have several bumps up using the 38 CFR 3.350 (f)(3) and (4) bump method. For instance, If he has a separate and distinct 100% schedular for IHD and another for 50% on a completely unrelated disability, that he is entitled to both the half step and the whole step bump. He already has SMC L for A&A.  I do not see any language forbidding the technique. It should be an interesting ruling. They're still haggling at the early stages and a judge(s) have not been assigned yet. VA OGC blew off the Rule 33 conference about five minutes before it was due to commence. Dumb. 

If the policy set fourth and highlighted below could be defeated in that developing CAVC claim it would benefit many vets, including myself. Alex, thanks for what you do for so many. 

Change Date

December 16, 2011

a.  Proper Application of 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4)

Apply the provisions of 38 CFR 3.350(f)(3) or 38 CFR 3.350(f)(4), whichever is appropriate, only once in a rating decision.    Important:  Concurrent entitlement to SMC under both 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4) is prohibited.

[jamescripps2]

Alex, pertaining to the subject of the CAVC discussed above,  Important:  Concurrent entitlement to SMC under both 38 CFR 3.350(f)(3) and38 CFR 3.350(f)(4) is prohibited.  Other than congress changing the law, I would think that the issue for the CAVC to decide is whether or not a latter rating decision actually supersedes a prior rating decision in its entirety.

There is no question in my mind that if a half step increase was awarded to a vet in a prior decision due to a 50% rating  decision, using the provision at F(3), and then, in a latter decision the vet was granted a 100% disability for a new and unrelated condition, the new 100% award would have to be allowed to fulfill the statute pertaining to maximizing the veterans benefits. As I see it, according to the present policy at 38 CFR 3.350 the latter decision awarding the newer whole step increase using F(4) would replace the older half step increase.

We are talking about two separate decisions, the former and the latter. The question being, is there a statute that defines the policy as to what extent the latter decision replaces the former decision. No matter really as the prohibition, Concurrent entitlement to SMC under both 38 CFR 3.350(f)(3) and38 CFR 3.350(f)(4) is prohibited, would still need to be further defined by the CAVC or otherwise defeated.

Just rambling out loud here, but I would like to see the CAVC claim won by the vet, i just can't wrap my mind around what the argument to challenge would consist of.