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SMC-R1

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Lonniebrinson

Question

My current rating is SMC-M ( loss of use of both feet and 100% bowel incontinence ). Since I have one SMC-L for loss of use of both feet.  My question can I use the 100% bowel incontinence to apply for aid and attendance or that would be considered pyramiding because I need two separate smc L-N with one being A&A to equal SMC-R1 ? I do have other disabilities

IVDS 60%, urine incontinence 60%, PTSD 50%, painful scars 30%

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30 minutes ago, Mr cue said:

It sound like all u need is one based on need of help of other smc l.

I have seen decision.with two smc l for aid attendance. Base on to different condition. Smc r grants.

Now will the va apply it the right way?

Because I keep see all these smc l awards and they base them on all of veterans condition.

I feel the va or the bva don't like smc claims of higher than smc m.

My opinion.

But to me sound like you are there just got to spell it out to them

 

 

 

Thanks for responding and your expertise

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It sound like all u need is one based on need of help of other smc l.

I have seen decision.with two smc l for aid attendance. Base on to different condition. Smc r grants.

Now will the va apply it the right way?

Because I keep see all these smc l awards and they base them on all of veterans condition.

I feel the va or the bva don't like smc claims of higher than smc m.

My opinion.

But to me sound like you are there just got to spell it out to them

 

 

 

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You can "pile on SMC" L's for loss of use, just like you can pile on SMC K's.  You can have loss of use of both hands, and both eyes, and your reproductive organ, all SC, for example.  Getting VA to do this, however, its easier to win the lottery.  

I have talked to VA employees who prescribe to the theory that "100 percent" is the max..that is how little they know about SMC.  

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I'm unsure of how much you know about SMC, Mr. Brinson. Here's the situation you face. You basically have 4 shots at SMC L. You have LOU of the LEs so that's one. You have a 100% rating for incontinence but you're using it to get a full bump from L to M. If the incontinence rating has nothing to do with the LOU of the lower extremities, then you can use it as the basis for a new filing for A&A. See See M21-1, Part IV, Subpart ii., Chapter 2, Section H, Topic 8, Subtopics a-c.  Specifically, the M21 indicates that a single disability evaluated at 100 percent disabling may be required for a grant of aid and attendance, and that without such a total disability, referral to the Director of Compensation may be warranted for extraschedular consideration. See also  the VA ADJUDICATION MANUAL, M21-1MR, Part IV(ii), Ch. 2, § I(58)(e) notes “veterans entitled to SMC at the [(o) rate or (r) rate] are, by definition, very seriously disabled” and the rater should “apply a liberal interpretation of the law in determining the need for A&A”.

Now, if the 100% rating for incontinence is not related, I would file for A&A based on anything you cannot do in the way of activities of every day living (ADLs) as summarized in the examples listed in §3.352. Most importantly, you should never imply that your loss of use of the lower extremities provokes the need for aid and attendance in itself. Read this precedential decision on Breniser and it will give you a better appreciation for what I suggest re the a&a. https://www.courtlistener.com/opinion/817365/breniser-v-shinseki/. Mr. Breniser didn't have a case and he lost based on pyramiding.

Your case, as all cases are in SMC, is different than Mr. Breniser. You have the extra 100% solely for the incontinence. If, and only if, the incontinence is not related to the loss of use of the legs such as paraplegia, then by all means file and cite to the M 21 cite above. However, if the incontinence is related to the loss of your lower extremities, all is not lost.  Simply use §3.350(e)(2) (SMC O):

(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.

Helplessness is, of course, the same thing as the need for aid and attendance of another. Either way, you are taking a positive path to R1. If you're using a VSO, I suggest you try this one without their help. They are not taught the intricacies of SMC and will somehow manage to screw it up.

Bon chance, sir.

 

 

 

Edited by asknod
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13 hours ago, asknod said:

I'm unsure of how much you know about SMC, Mr. Brinson. Here's the situation you face. You basically have 4 shots at SMC L. You have LOU of the LEs so that's one. You have a 100% rating for incontinence but you're using it to get a full bump from L to M. If the incontinence rating has nothing to do with the LOU of the lower extremities, then you can use it as the basis for a new filing for A&A. See See M21-1, Part IV, Subpart ii., Chapter 2, Section H, Topic 8, Subtopics a-c.  Specifically, the M21 indicates that a single disability evaluated at 100 percent disabling may be required for a grant of aid and attendance, and that without such a total disability, referral to the Director of Compensation may be warranted for extraschedular consideration. See also  the VA ADJUDICATION MANUAL, M21-1MR, Part IV(ii), Ch. 2, § I(58)(e) notes “veterans entitled to SMC at the [(o) rate or (r) rate] are, by definition, very seriously disabled” and the rater should “apply a liberal interpretation of the law in determining the need for A&A”.

Now, if the 100% rating for incontinence is not related, I would file for A&A based on anything you cannot do in the way of activities of every day living (ADLs) as summarized in the examples listed in §3.352. Most importantly, you should never imply that your loss of use of the lower extremities provokes the need for aid and attendance in itself. Read this precedential decision on Breniser and it will give you a better appreciation for what I suggest re the a&a. https://www.courtlistener.com/opinion/817365/breniser-v-shinseki/. Mr. Breniser didn't have a case and he lost based on pyramiding.

Your case, as all cases are in SMC, is different than Mr. Breniser. You have the extra 100% solely for the incontinence. If, and only if, the incontinence is not related to the loss of use of the legs such as paraplegia, then by all means file and cite to the M 21 cite above. However, if the incontinence is related to the loss of your lower extremities, all is not lost.  Simply use §3.350(e)(2) (SMC O):

(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.

Helplessness is, of course, the same thing as the need for aid and attendance of another. Either way, you are taking a positive path to R1. If you're using a VSO, I suggest you try this one without their help. They are not taught the intricacies of SMC and will somehow manage to screw it up.

Bon chance, sir.

 

 

 

Thanks for responding, I learned more for you than my own research on SMC. Corrections I'm rated at SMC-P2 and my 100% Bowel incontinence has nothing to do with Loss of use of both feet ( SMC-L ).

I appreciate you. Thanks again

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SMC P (or P1, P2, PX etc.) is an amalgam of ratings which are oddball combinations. Read up on it here. I've been tampering with this article ever since I wrote it in 2013. 

https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/

SMC P can be SMC L +K, SMC M 1/2, SMC N + K or whole host of other combinations of things. Think of SMC P as a combination of anything between L and N with a K added in some cases. SMC L, all by itself, is not SMC P. If you add a SMC K to it  for LOU of an eye or ED, it gets labeled P-1. If you got a bump to M (plus the existing K for the eye) from the 100% for incontinence, that becomes SMC P-2. Under the SMC P-1, the Code sheet will say effective from 1/01/2021 to 9/21/2021. The SMC P-2 will say "effective from 9/21/2021" without an end date.

As for the number after the Letter (i.e., SMC P-2), that merely identifies the number of times you have been awarded the lettered SMC. For example, Let's say you got to 100% for PTSD and then had an operation on your SC knee(s). You'd get the 100% temporary bump for surgery for six months and VA would (in a more perfect world) infer the ancillary SMC S rating. That would be labeled S-1 on the code rating sheet. After six month temporary surgery 100% rating, you'd lose the SMC S bump and be reduced down to the final rating for your knee(s). If, at that time, the combination  of your other independently ratable SC disabilities equaled or exceeded 60%, under §3.350(i)(1), you would once again be awarded SMC S. This would be labeled SMC S-2. If VA came back and reduced you for something else in the future and your independently rated disabilities dropped below the magic 60%, VA would take away the SMC S and you'd have to refile to win it back. If you succeeded again, that would become SMC S-3. Ad nauseum.

Were the shoe on the other foot, Mr. Brinson, I'm sure you'd try to impart this same knowledge to me were I to inquire. SMC is the hardest thing to comprehend that you will ever encounter in VA land. VA raters use a "speshull" SMC computer to do this which is always wrong. 

r

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