SMC K for loss of use of one eye

[Richard1954]

I presently have an active claim where I am argueing that I should be awarded a K award for loss of use of my left eye. I will try to explain the case, in as few words as possible.

In 2008, I had surgery for removal of a cataract in my left eye that was caused by use of steriods for my service connect lung condition. The surgery when bad, and the replacement lens (IOL) was placed too close to the iris. Because of the positioniong of the lens, it rubed upon the iris, causing intermittent periods of loss of sight due to spikes in the eye pressure. I was diagnosed with pigmentary dispersion syndrome and pigmentary gloucoma. The pressure spikes continued for years, I would lose my sight intermittently for days and weeks at a time. When I filled a claim for loss of sight, it would be denied because the va will not compensate for intermitten loss of sight. In 2019, I was fouond to have multiple blood clots in my lungs, I was put on blood thinners. From here on, the intermitten loss of sight worsened because now when the lens was rubbing the iris, it was causing bleeding in the eye. In Nov 2000, I had a serious problem where the bleeding was getting to the back of my eye. I had what was called emergeny surgery to remove the lens, because now it was causing more damage to the optic nerve. At the time it was recommended not to replace the lens, instead to allow the eye to heal for 6 months and then have a lens sewed in place to prevent the rubbing. I never wanted this surgery, I was content to have intermitten sight than no sight at all. By this time my 30% for cataracts was upgraded to 60% because of numerious trips to the eye doctor and placement on bed rest, which was a failly new rating at that time. So the plan was to tlry to fit me with a special type of contact lens, as I had decided against any more surgery due to having 5 eyes surgeries with no good results. Well, they tried to fit a contact into my right eye and immediatly I had an adverse reaction, ironically they did not order a contact lens for the left eye. By this time I was done with trying to see out of the eye. I had allready fought one claim for temporary 100% due to the 6 months healing time, When it was finally granted, I though I was entitled to a temporary bump up to SMC M. This was not the case because it was a temporary award, I was not entitled to the bump, and waisted a lot of time and effort on the case.. At the same time I had request loss of use K award. Which continues to be denied. For a K award for the eye , the rules clearly state loss of use or blindness entitles a veteran to a k award. However, the va continues to state that loss of use is blindness , and continue to argue that because I have light perception, and can see shapes I do not qualify for a K award because I am not blind. Never mind the fact that without a lens the eye is useless, ( actually it present other more serious problems which I will not go into here) When I cite the rule Loss of use or blindness , they continued to say loss of use is blindness.  The va is factually ignoring the wording of the rules and denying me a K award. I vow to fight this all the way to the federal courts if I have to ,, because the plain reading of the rule indicates two reasons for a K award, loss of use Or blindness.  Without a lens I have loss of use of the eye.  The va is now not using the claim that loss of use is blindness., instead they cite other reasons for the denial, such has veteran has light perception. The ignore the fact that I cannot disgunish anything further than two feet from my eye, and that when evaluated I am considered to be legally bilnd in the eye. So the fight goes on, its been almost two years and numerious supplemental claims, if denied again it will got to the BVA. I even considered just bypassing the local decisions and going straight to the BVA, but I enjoy putting forth legal arguements and making the va follow the rules they created. I also enjoy the learning process that this provides to hone my legal arguements. I have no doubt the BVA will award the claim eventually. In the meantime its money in the bank.

[GBArmy]

Richard1954 Seems to me you have a strong case and meet the criteria for SMC (k) https://benefits.va.gov/BENEFITS/factsheets/serviceconnected/smc.pdf On VA's published document it states " Loss of sight of an eye (only seeing light)" If you have a denial, I'd go HLR and, assuming it is denied again, get a lawyer. It isn't a big SMC award, but it is a slam dunk (IMHO) and maybe the back pay would interest the lawyer. If you have the time, I'd do a research on BVA decisions on SMC awards for a similar situation. 

[broncovet]

Like many other Veterans, there is little choice to go to the BVA...both HLR (no new evidence) and SCL (with new evidence) are just your VARO, but are supposed to be more experienced decision makers.  Obviously they are unable to understand TWO letter words:  "OR".  

    Berta and I have had many instances where VARO representatives can not read.  I guess these people can read, but have difficulting understanding the difference between "and" and "or".  

    The sooner you appeal to the BVA, the faster you will get benefits.