What level of SMC would I be entitled to?

[rentalguy1]

I have a lot of VA claims knowledge, but one thing I have never been able to square away in my noodle is SMC rate combinations. I have SMC L-1 for A&A. I am also appealing, and have no doubt that I will win a claim for loss of use of both feet (my VA PCP and the QTC examiner both quoted, ver batem, the language from the CFR to describe my LOU/complete paralysis - no active movement below the knee, but the rater totally ignored it and gave me 60% for each leg under Sciatic Nerve, Incomplete Paralysis). The rating for LOU of both feet is 100%. I also have additional 70%, 60% (not the sciatic nerve), and 50% ratings. As I understand it, a single 100% rating plus an additional 60%(+) rating also equals SMC L. How are those two combined? Is that L 1/2? Or is that not even allowed? Also, loss of use of a foot is an SMC K rating. I am assuming that I could not get the L rating and two K ratings due to pyramiding. My gut is telling me the best I can hope for is the L rating for A&A plus two SMC K ratings for the LOU of both feet. What do you all think?

[john999]

SMC is a very complex thing, or the VA makes it complex.  There is a guy we all know named former member or Alex. SMC is is special thing.  He works for money but he does know the subject.  You can get help from experts on this because most at the VA don't even understand their own rules.

[broncovet]

I agree that SMC is complex..complex enough that many law firms dont get all the complexities.  Some law firms are great, tho, and the SMC Champion is, CCK law.  They have many public posted articles on SMC.  

In at least one portion you have some misinformation....you are not alone, there is much of it swirling around.  

You posted: 

Quote

As I understand it, a single 100% rating plus an additional 60%(+) rating also equals SMC L

Close, but no cigar.  The "100 plus 60" is Statuatory SMC S.  The regulation is found here:

Quote

Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and,

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or

Notice the "or".  This means its not the only way to get SMC S, there is another, called "housebound in fact".  

SMC regulations can be found here:

https://www.ecfr.gov/current/title-38/chapter-I/part-3/subpart-A/subject-group-ECFR6477ad08d327384

[rentalguy1]

So, here is the update. I got the award letter from my higher level review today, and I was awarded 100% for LOU both feet, SMC L for a single 100% rating plus a separate 70% rating, which combined to L 1/2, specially adapted housing grant and specially adapted vehicle grant. I'll take that as a win, and it only took 3 1/2 months. After further reviewing the law, it appears that I would not be eligible for additional K ratings as it would be pyramiding. I still have two other higher level reviews outstanding and my caregiver claim is at the BVA. I will update as soon as I know something.

[broncovet]

Congratulations on your win

 Now, make sure the effective dates are correct.  Your effective date of smc is "the date you met the criteria for it" and is not dependent upon the date you filed.  

If VA limited your effective date to the date you filed, then you will need to appeal for additional retro.  

[rentalguy1]

I have an appeal for an earlier effective date for aid and attendance. I will have to do a double check of the records to see if the loss of use of both feet presented prior to the awarded effective date, which I am pretty sure it does. They always want to use the date of the C&P exam as the date you met the criteria, but most vets have medical records that provide evidence showing an earlier date where the criteria were met.

On a side note, I got another decision letter (online) for a second higher level review and I won three of the four issues on it (c-spine 20%, radiculopathy 20% in each arm). The remaining issue was GERD, and it was remanded, in effect, for the gathering of more information due to a CUE on their part involving the PACT act. I don't get any extra money out of this one, but I could care less. I like getting to add another win to my record against them. 

[jamescripps2]

If you have been granted LOU of two feet, that is an "L" award. If you was also granted A&A, for a seperate and distinct disability, which is also an "L", then you should be rated at "R-1". If your A&A requires that you need professional help with your ADLs, then you should be at" R-2".

FYI loss of use of two feet is a 100% award.

Loss of use of two feet is an SMC L and gets you the SAH grant and an automobile grant / with adaptive equipment.

A&A and lou of two feet together gets you a "R-1" rating because two seperate and distinct ratings between SMC L and O will get you the maximum rate of "O" and the A&A becomes the higher rate of "R-1"

All of the SMC ratings and their qualifications are contained at 38 CFR 3.350. 

All of the A&A ratings and regulations are couched in 38 CFR 3.352.  

There is one more sentence  mentioned on A&A at 38 CFR 3. 351 (C) (3)

I cover the subject of caregiver appeals at my website,

vatheredneckway.com

[namvet6567]

Please remember that anytime something is mentioned in your medical records it can be considered a claim for that benefit.  The VA often doesn't take that into consideration.  Never give up on an SMC claim!  I won a hb/smc-s award, 31 yrs retro, 2yrs ago, b/c I never gave up.

 

  

[rentalguy1]

On 9/19/2023 at 11:29 PM, jamescripps2 said:

If you have been granted LOU of two feet, that is an "L" award. If you was also granted A&A, for a seperate and distinct disability, which is also an "L", then you should be rated at "R-1". If your A&A requires that you need professional help with your ADLs, then you should be at" R-2".

FYI loss of use of two feet is a 100% award.

Loss of use of two feet is an SMC L and gets you the SAH grant and an automobile grant / with adaptive equipment.

A&A and lou of two feet together gets you a "R-1" rating because two seperate and distinct ratings between SMC L and O will get you the maximum rate of "O" and the A&A becomes the higher rate of "R-1"

James, Thank you. My LOU of both feet is secondary to my SC'd spine conditions. My spine conditions and all the secondaries attached to it are what causes the need for A&A, which means I only qualify for a single L rating on that end. In addition to these I have other, separate ratings in excess of 50% which qualifies me for another L award, which is what bumped it up to L 1/2. I have to single 100% rating for LOU of both feet, and they have informed me of eligibility for the SAH and vehicle grants. I am considering the SAH grant now, but we're not sure if we are going to stay in this house or move within the next 5-10 years. For the vehicle grant, I just bought a new truck in July, which  means I have to wait until I trade again since that grant has to be applied for before you purchase (unless someone knows a way around that).

[jamescripps2]

The additional 50% and 100% ratings are not, and will never be SMC L ratings. They are SMC P-1 at 50% or a SMC P-2 rating at 100%. They fall under 38 CFR 3.350 F(3), a half step increase for an additional 50% rating or 38 CFR 3.350 F(4), a full step rating, for an additional 100% rating.

To clarify, an L rating, for loss of use of two feet, would increase to L1/2 with a F(3) half step bump. The same L rating would increase to an M rating with the whole step bump for an additional 100 % rating. Also, you can't have both, as it is one or the other, F(3) or F(4). 

If you bought a new truck before you completed the vehicle grant paperwork, no you can't use the grant on that purchase. No way around that. However, you can purchase a second vehicle and use the grant. You can even trade in or sell your truck. or keep it. The grant does not expire, unless you expire first.

Also, you can use the adaptive equipment grant on your previously purchased truck. You can use the adaptive equipment grant twice every four years.

I hope that you are using a service officer with the Paralized Veterans Of America,(PVA) to get the most out of your benefits. You also need to apply for PCAFC caregiver benefits if you have not already done so. I have written much on that subject at my website.

vatheredneckway.com

[rentalguy1]

What I am reading in 38 CFR 3.350(f)(3 and 4) are not lining up with what you are stating. What I am reading is:

(iii) Anatomical loss or loss of use of one foot with anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place, shall entitle to the rate between 38 U.S.C. 1114(l) and (m).

(iv) Anatomical loss or loss of use of one foot with anatomical loss or loss of use of one arm so near the shoulder as to prevent use of a prosthetic appliance shall entitle to the rate under 38 U.S.C. 1114(m).

Here is what they had to say in the decision:

1. Entitlement to special monthly compensation based on loss of use. Entitlement to special monthly compensation is warranted in this case because criteria regarding loss of use of both feet were met from April 27, 2023, the date the evidence shows you warrant this evaluation. (38 CFR 3.350, 38 CFR 3.400, 38 CFR 3.401, 38 CFR 4.1) You have service connected loss of use of both feet and are rated the maximum under 38 U.S.C. 1114 because of the need for A&A is not completely independent of the loss of use of use of both feet. (38 CFR 3.350, 38 CFR 4.14)

2. Entitlement to a higher level of special monthly compensation based on additional independent 50 percent disabilities. Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (p) and 38 CFR 3.350(f)(3) at the rate intermediate between subsection (l) and subsection (m) on account of entitlement to the rate equal to subsection (l) with additional disability(ies), independently ratable at 50 percent or more from April 27, 2023, the date the evidence shows you warrant this evaluation. (38 CFR 3.350, 38 CFR 3.400, 38 CFR 4.1)

 

Their decision makes sense to me based on my reading of the law. If I am wrong I will definitely file an appeal. Are they wrong?

[jamescripps2]

Your decision is correct.. LOU of 2 feet is rated as an L. An additional 50% award P or F(3), added to that L award brings you up to an L 1/2. It would also be wise for you to search the record for an earlier effective date and file for the EED if you find that it is./ or should have been inferred. 

What is not lining up with what I stated earlier?

[rentalguy1]

F(3) and F(4). I posted what is written in 3.350 in the earlier post. I have a claim for EED of aid and attendance at the BVA.