SMC-O ?

[756pro]

I an smc-L  with, organic recall syndrome with mood instability, and panic attacks. I  just got 6 more  100% can I go four  smc o?  

[FormerMember]

In order to obtain SMC at the O rate, you need two SMCs between L and N. An example would be the need for aid and attendance at the L rate and loss of use of the upper or lower extremities at  the L rate. The only other way is to be in receipt of SMC N 1/2 with at least one SMC K award. VA DROs tell me we are only allowed one "bump" under §3.350(f)(3) or (4) based on the M21-1MR. However, the Secretary's regulation doesn't say that. It will be a matter of first impression at the Court should any Vet arrive there with this unique confluence of disabilities. 

SMC is one of the most difficult concepts to absorb. I studied it for almost 5 years before I even began to feel proficient enough to do one of these. I would guess there are probably no more than 10 VA attorneys who do this successfully. A good friend of mine (Robert Chisholm) of CCK law firm is the absolute master of SMC. 

You could have 20 100% schedular ratings but would still only be entitled to SMC S. To try to understand this, I always suggest reading this article explaining it. https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/

SMC is the only rating system which actually allows pyramiding of disabilities to "leapfrog" ahead to SMC R1 from SMC O.

 

[MrPain7]

756pro: if you are rated at the L rate for SMC and you said you have 6 more 100% then you would rated at the -O- rate because every other 50% not included with your L rating will bump you up a 1/2 step. so 6 added 100% would take you their...........

 

 

[756pro]

Thank You,  Tony

[FormerMember]

Currently, the M 21 1MR forbids what MrPain7 alleges as being possible via regulation or statute.  DROs regularly forbid what you describe. In fact, they only permit one 100% "bump" under §3.350(f)(4) OR one 1/2 step bump under §3.350(f)(3) but never both and certainly not multiple applications. 

IV.ii.2.H.6.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. 

 

However, the Secretary's regulations say no such thing. Notice the use of the plural of "permanent disabilities" in (f)(3) which is missing in (f)(4). 

 

(3) Additional independent 50 percent disabilities. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.

(4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above.

This is what we call a matter of first impression legally. It has never come before the CAVC or CAFC yet and many of us eagerly await a case. I repeat- you can have SMC L and have one 100% rating independently ratable that will advance you to SMC M. You will never get a RO to grant an additional 1/2 step bump to M 1/2, nor will you ever get to O this way except from N. SMC O is very explicit on what you need. Note below there is no provision for advancing to SMC O by simply throwing more 100% ratings at SMC L.  If you qualified for N, then you could get the (f)(4) 100% bump to O but the requirements for N are pretty rough. You can get to SMC O also by having N1/2 + a SMC K.

 

(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.

(2) Paraplegia. Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures.

I'd welcome anyone to show me a proven BVA or CAVC case (not just hearsay) where the VLJ or Justice awarded both entitlements or even multiple entitlements of both (f)(3) and (f)(4). It's easy to just baldly state how this works. It's quite another situation entirely to give examples proving your point. Simply put, if what you said was true, MrPain7, we'd all know about it. I've asked for both bumps before for several Veterans but my clients ended up with R1 so it mooted the point of the claim for (f)(3) and (4).