One Month Old Baby Doing Flexion of Both Lower Extremities
Member Carla writes and says "my husband has lost the use of his creative organ for all intents and purposes. They attribute this to his DM2. He was also blinded in one eye from shell fragments during a mortar attack in Vietnam during his tour. They were paying him Special Monthly Compensation (K). My question is simple. Can he have two (K) ratings at the same time? Our VSO says no and won't file it. What's the law?"
Well, Carla. Ratings accrue from 0% up to 100%. Certain parts and pieces we're missing are remunerated slightly differently beyond 100%. Finally, if we are missing too many or some go bad, we advance up the ladder. SMC is awarded for "quality of life" issues above and beyond 100% disability if you served in a time of war. At the end, when we are on our deathbed, we're often actually entitled to SMC (r) (2) for that short period before we kick over assuming the proper, multiple causes are service connected (of course). Sadly, since VA doesn't keep close tabs on you, you need to file for these deficits even though the law says VA has to "infer" it. If they can't see you, they can't infer you. So, without further ado, let's learn about SMC.
In the course of this article, you will see the SMC rates expressed as lower case and upper case letters. Ignore that. It takes three strokes to parenthesize (s) versus S. I got lazy while doing this so you'll see them expressed both ways. Six of one and half a dozen of another. You'll also learn how to file for two A&A awards under SMC L because VA lets you pyramid your SMC. Interesting? You bet.
SMC K Awards
So… Carla. Think of your husband as Mr. Potato Head® as an example. Imagine him starting out complete. Now let's start removing eyes, arms and legs and see what happens. He has lost an eye so he gets SMC K number one. Ka-ching–$103.23/month (2015 rates). Your VSO representative is very wrong on the number of SMC Ks you can receive. Surprise, surprise , surprise, huh?
So now, you move forward and say Roger that. Loss of, or loss of use of, a creative organ (we'll forego illustrating this on Mr. PotatoHead™ in order for him to keep his dignity)–Ka-ching. SMC (K)– $103.23 more dollars a month (2015). Each and every condition listed in 38 CFR §3.350 (a) Special Monthly Compensation is a stand alone item worth the $103.23. This is added to your current rating of X %.
Obviously, this largesse hits a trip wire eventually. If you are 100% service connected for Hepatitis C and you have some of these items, they are stand alone (K) ratings that qualify. If and when the aggregate total of these injuries meets or exceeds what you would be entitled to under SMC L, the gravy trains stops. There is no limit to K awards. One can see s/he would need all of them and an additional 60% such as needed for the SMC (S) to get into striking range of SMC (L). One can also see she/he would need to have a complete complete Chelsey Manning makeover to get all of them.
Here's the criteria for (K)
Mastectomy or even a partial one (see criteria)
Loss of testicle(s)
Loss of, or loss of use of use of, creative organ (male or female)
A foot; or
a hand
both buttocks (the quintessential Forest Gump injury)
totally deaf
Aphonia (loss of speech)
one eye
Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved.
Complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot.
SMC S
The next higher stand alone SMC is SMC (s). To be sure, you may collect the SMC (k) ratings above as well as SMC (s). By law, your SMC Ks and SMC S cannot exceed the next higher rating of SMC (l). SMC (s) is called the housebound rating. If you are confined to your home because of medical conditions that keep you home, then you are "substantially" housebound. Another way to qualify for SMC (s) is to have a 100% schedular rating or TDIU for a singular disability and a separate, additional 60% or more in combined ratings (using convoluted VA math) unrelated to the initial 100%/TDIU qualifier. Those are the general parameters.
Now, I get asked this by every single Vet who finds out about this "secret" rating the VSOs never tell you about. "So I get the 100% check for $3,068.90 a month and I get the SMC (s) rate on top of that, right?" Negatory, fellers. VA is on a reduced bonus diet these days. They don't hand out money like Mardi Gras beads on Fat Tuesday. Think of it like being promoted from PFC to Corporal. In this case, you get a $345 a month increase on top of the 100% comp. VA tells everyone we Vets call this our Corvette payment. Yeah, right.
And here, we enter a footnote -a very important one. Read the following decision on SMC S and what the VA Secretary says about it. The consensus precedent opinion in Howell v. Nicholson says SMC (s) is not based on a medical consideration but a work consideration. I no longer agree with others on this. My take is read the whole decision and it simply says if you are incapable of leaving the house to earn an income, you are entitled to SMC at the (s) rate based on being truly housebound. The VA likes to say if you can leave the house to attend a c&p exam then you ain't very housebound. That's the wrong legal standard of review.
https://asknod.wordpress.com/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/
The regulation specifies that you must be either ratable at a combination of 60% or more above a TDIU (or a 100% schedular rating) or with TDIU alone and with extraordinary conditions to be eligible. If you have one disease or injury rated at 100% and you are undebateably housebound in all but name only, they often grant. A letter from a doctor would be great help stating as much. Download a VA Form 21-2680 and have your doctor fill it out and submit it. SMC S is an extra $346.84 above the normal 100% rating of $3068.90(with spouse) for a whopping $3415.74/month. A codicil to this is that each and every illness/injury has to be separate and distinct from your 100% (or TDIU item) to qualify. If you have peripheral neuropathy secondary to DM2, those are injuries/illnesses that are distinct and separate but still can be used in combination to qualify for aid and attendance. Shell fragment wounds to several parts of your body (muscle groups) are all related to one injury or event and are not distinct and separate. VA will get down and dirty on this. Expect a lot of mistakes on what constitutes a "separate and distinct illness above and beyond the primary rating for the TDIU/100%". They all have to be service connected, too. A complete, different illness separate from the rated one (like Porphyria), secondary to the Hepatitis, involves a different element (the skin). Much debate occurs on this and raters make much mistakes after too much M 21.
And before we continue the alphabet disability parade, there are certain times you get a "bye" on a given SMC requirement and advance even higher. I discuss how to jump from L to N without being blind or suffering a single amputation in the last paragraph.
SMC L
The next big step up the ladder is the aforementioned SMC (l). The requirements of (l) will invariably include some of the (k) ratings because this is an incremental potato head game. (l) does not hinge on percentages. If you qualify for (l), it's $3601.00/month in 2016 $ as a single Vet. The Forest Gump exemption is still there if you lose your buttocks. If you do, you get to throw in that SMC (k) and any others for $103.23/month each on top of (l) or (s). That's not the end of (k)s because you can add them to (m) and (n), too. Oh, and you can keep the (K) for the loss of use of the creative organ too. The fact is, you can keep all your SMC (k) ratings with an (l) rating as long as the combination doesn't exceed what is paid for SMC (m).
SMC (l) is paid based on any of these:
Loss of one eye or blindness in both eyes with visual acuity of 5/200 or less
totally deaf
Aphonia (loss of speech)
loss of one hand and one foot or: loss of both feet
OR (notice the disjunctive)
Need for aid and attendance— The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in § 3.352(a).
Permanently bedridden–The criteria for rating are contained in § 3.352(a). Where possible, determinations should be on the basis of permanently bedridden rather than for need of aid and attendance (except where 38 U.S.C. 1114(r) is involved) to avoid reduction during hospitalization where aid and attendance is provided in kind.
The loss of, or loss of use of an extremity (hand, foot) is based on the SMC(K) rule (a)(2). This generally is an amputation or impairment closest to the first joint the extremity is attached to. The half steps are for amputation or loss closer to the trunk of the body. SMC P is a laundry list of odds and ends combined to instruct on all the possible combinations and the proper SMC rating for each. A lot of times the combination of disabilities doesn't fit a (P) but VA errs on the side of a lower rating.
SMC L pays $3779.09/month with spouse, so this works out to $710.19 more per month than a simple 100% rating. The amount of SMC Ks added to the SMC L cannot exceed what is paid in SMC M-the next higher rate- unless it is described in SMC P. Generally, someone who qualifies for SMC S eventually deteriorates over time and moves up to SMC L. Now, if you qualify for L as a stand alone rating based on one disability rated at 100% schedular, and you also had Hepatitis C for 100%, you would automatically advance to SMC (M) See §3.350(f)(4). If you have a 50% or greater rating on an a disease/injury [regardless of whether the individual diseases, or injuries are of different etiology] and qualify for (L) as a stand alone, then you could theoretically advance with an additional bump to (L½). There is much discussion on this "bump" business. VA raters say the M 21 forbids both bumps. I plan to defeat that some day because §3.350 is ambiguous as to whether you can award both bumps. If you have a separate and distinct, stand alone 100% schedular rating with award of SMC L, you get a bump from L to M. But you could file for a separate SMC L for A&A for that too. If you had SMC M for LOU of the upper extremities and a 100%, you'd bump from SMC M to N. Under the same theory, you can have a 50% or more rating (or combinations adding up to 50%) and get the 1/2 step bump by VA's current regulation. Remember its either conjunctively (and)- or disjunctively (or) phrased to understand it. If neither are there for clarification, the regulation or statute that grants the greater benefit is for application. It's an interesting codicil and one very few raters, let alone BVA judges are even aware of. I've found several BVA decisions on this where both bumps (§3.350(f)(3) and (4)) were awarded.
Obviously, the big banana is to go after two SMC Ls for aid and attendance to reach the higher tier of SMC R1. I will list these here for your education/edification but the discussion of R1 below is still pertinent.
https://www.va.gov/vetapp18/files8/18126101.txt
https://www.va.gov/vetapp97/files1/9703147.txt
https://www.va.gov/vetapp04/files/0404466.txt
https://www.va.gov/vetapp15/files6/1552412.txt
https://www.va.gov/vetapp18/files8/18125531.txt
https://www.va.gov/vetapp18/files3/1814284.txt
https://www.va.gov/vetapp19/files3/19118790.txt
https://www.va.gov/vetapp19/files4/19125607.txt
https://www.va.gov/vetapp19/files11/a19002711.txt
https://www.va.gov/vetapp21/files2/a21003790.txt
SMC M
The next step is SMC (M). Mr. Potatohead is gradually losing his ability to ambulate and see. He is now wheelchair bound unless he's very adroit with a bunch of prostheses. Here's the next set of required missing parts.
Anatomical loss or loss of use of both hands;
Anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place;
Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place;
Blindness in both eyes having only light perception;
Blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance.
Natural elbow or knee action. In determining whether there is natural elbow or knee action with prosthesis in place, consideration will be based on whether use of the proper prosthetic appliance requires natural use of the joint, or whether necessary motion is otherwise controlled, so that the muscles affecting joint motion, if not already atrophied, will become so. If there is no movement in the joint, as in ankylosis or complete paralysis, use of prosthesis is not to be expected, and the determination will be as though there were one in place.
Eyes, bilateral. With visual acuity 5/200 or less or the vision field reduced to 5 degree concentric contraction in both eyes, entitlement on account of need for regular aid and attendance will be determined on the facts in the individual case.
Or, what most will never know is that you can get a bump from SMC L to SMC L 1/2 or M if you have a 50% or 100% disability that is separate and distinct from what you got the SMC L for in the first place. (38 CFR §3.350(f)(3),(4).
SMC M pays $4153.81/month-an increase up from the $3966.07/month on (L½) or $187.74 more. SMC-M½ jumps to $4428.07/month and again requires shorter arms and legs, eyes physically missing, poorly fitting prostheses, etc.
SMC N
SMC N continues the parade of missing pieces. Mr. Potato head is now blind and immobile due to no feet down belooooow the knees. Actually he is without knees.Any of the conditions below qualify you for this. Also remember this is the last SMC chance to cash in the SMC (K) for the lost buttocks. Don't forget it.
Amputation is a prerequisite except for loss of use of both arms and blindness without light perception in both eyes. If a prosthesis cannot be worn at the present level of amputation but could be applied if there were a reamputation at a higher level, the requirements of this paragraph are not met; instead, consideration will be given to loss of natural elbow or knee action.
Anatomical loss or loss of use of both arms at a level or with complications, preventing natural elbow action with prosthesis in place;
Anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance;
Anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance;
Anatomical loss of both eyes or blindness without light perception in both eyes.
SMC (N) pays out at $ 4540.89/ month- a sizable jump from M. I do not include the half steps as they simply add another few $ to the equation and a requirement for a few extra missing pieces or shorter ones.
SMC O
When we get to SMC O ($5,237.67) , Mr. Potato head is beginning to look just that- a potato. Here are the prerequisites to attain (O).
Mr. Potato Head in potato wheel chair.
Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance;
Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n);
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.
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.
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.
Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement.
Helplessness. The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness.
Intermediate or next higher rate. An intermediate rate authorized by this paragraph shall be established at the arithmetic mean, rounded to the nearest dollar, between the two rates concerned.
Mr. P head on R1
SMC (O) is generally as high as you go unless you have two 100% disabilities distinctly different from one another and one of them is Aid and Attendance at the L rate. A bright line rule when you get into the higher levels of SMC or leapfrog ahead under the §§3.350(f)(3),(4) codicils is to expect to have to meet stringent requirements. I've seen how VA treated one Vet in just the last year (2016). He was housebound, has grand mal seizures that put him in the hospital for two weeks at a time. He loses his recent memory and has to "catch up" after each seizure. He can successfully transition from his bed to his wheelchair without falling so VA considers that proof that he has not lost the use of his lower extremities (entitling him to a jump from SMC P (M + K+K) to SMC R2). That took several doctors and employing the correct DBQ on the subject. They somehow disremembered they were not supposed to use the DBQ for Peripheral Neuropathy.
Here's an interesting rating using SMC O and the addition of another A&A rating under L to get to R1.
https://www.va.gov/vetapp98/files1/9802978.txt
SMC P and All its Iterations
SMC P is what throws everyone. There is no set pay for SMC P so you have to retreat to §3.350(f)(1). Trust VA to try to envision every possible combination of a SMC L or M rating and begin adding on Ks and lengths of limbs capable of strapping prostheses to. Nevertheless, they did it-more or less. Check out all these myriad possibilities and see if you can squeeze into one some day.
(1) Extremities.
(i) Anatomical loss or loss of use of one foot with anatomical loss or loss of use of one leg at a level, or with complications preventing natural knee action with prosthesis in place, shall entitle to the rate between 38 U.S.C. 1114(l) and (m). L ½$3,977.97 (2015)
(ii) Anatomical loss or loss of use of one foot with anatomical loss of one leg so near the hip as to prevent use of prosthetic appliance shall entitle to the rate under 38 U.S.C. 1114(m). M$4,166.28
(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). L ½$3,977.97
(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). M$4,166.28
(v) Anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance, shall entitle to the rate between 38 U.S.C. 1114(m)and (n). M ½$4,441.36
(vi) Anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place with anatomical loss or loss of use of one hand, shall entitle to the rate between 38 U.S.C. 1114 (l) and (m). L ½$3,977.97
(vii) Anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place with anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance, shall entitle to the rate between 38 U.S.C. 1114(m) and (n). M ½$4,441.36
(viii) Anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance with anatomical loss or loss of use of one hand shall entitle to the rate under 38 U.S.C. 1114(m). M$4,166.28
(ix) Anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance 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 (m) and (n). M ½$4,441.36
(x) Anatomical loss or loss of use of one hand 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 (m) and (n). M ½$4,441.36
(xi) Anatomical loss or loss of use of one hand with anatomical loss 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(n). N$4,717.07
(xii) Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance, shall entitle to the rate between 38 U.S.C. 1114(n) and (o). N ½$4,984.98
(2) Eyes, bilateral, and blindness in connection with deafness and/or loss or loss of use of a hand or foot.
(i) Blindness of one eye with 5/200 visual acuity or less and blindness of the other eye having only light perception will entitle to the rate between 38 U.S.C. 1114 (l) and (m). L½$3,977.97
(ii) Blindness of one eye with 5/200 visual acuity or less and anatomical loss of, or blindness having no light perception in the other eye, will entitle to a rate equal to 38 U.S.C. 1114(m). M$4,166.28
(iii) Blindness of one eye having only light perception and anatomical loss of, or blindness having no light perception in the other eye, will entitle to a rate between 38 U.S.C. 1114 (m) and (n). M½$4,441.36
(iv) Blindness in both eyes with visual acuity of 5/200 or less, or blindness in both eyes rated under subparagraph (2) (i) or (ii) of this paragraph, when accompanied by service-connected total deafness in one ear, will afford entitlement to the next higher intermediate rate of if the veteran is already entitled to an intermediate rate, to the next higher statutory rate under 38 U.S.C. 1114, but in no event higher than the rate for (o).$5,253.39
(v) Blindness in both eyes having only light perception or less, or rated under subparagraph (2)(iii) of this paragraph, when accompanied by bilateral deafness (and the hearing impairment in either one or both ears is service-connected) rated at 10 or 20 percent disabling, will afford entitlement to the next higher intermediate rate, or if the veteran is already entitled to an intermediate rate, to the next higher statutory rate under 38 U.S.C. 1114, but in no event higher than the rate for (o).$5,253.39
(Authority: Sec. 112, Pub. L. 98-223)
(vi) Blindness in both eyes rated under 38 U.S.C. 1114 (l), (m) or (n), or rated under subparagraphs (2)(i), (ii) or (iii) of this paragraph, when accompanied by bilaterial deafness rated at no less than 30 percent, and the hearing impairment in one or both ears is service-connected, will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114, or if the veteran is already entitled to an intermediate rate, to the next higher intermediate rate, but in no event higher than the rate for (o).$5,253.39(Authority: 38 U.S.C. 1114(p))
(vii) Blindness in both eyes rated under 38 U.S.C. 1114 (l), (m), or (n), or under the intermediate or next higher rate provisions of this subparagraph, when accompanied by:
(A) Service-connected loss or loss of use of one hand, will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or, if the veteran is already entitled to an intermediate rate, to the next higher intermediate rate, but in no event higher than the rate for (o); or
(B) Service-connected loss or loss of use of one foot which by itself or in combination with another compensable disability would be ratable at 50 percent or more, will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or, if the veteran is already entitled to an intermediate rate, to the next higher intermediate rate, but in no event higher than the rate for (o); or
(C) Service-connected loss or loss of use of one foot which is ratable at less than 50 percent and which is the only compensable disability other than bilateral blindness, will afford entitlement to the next higher intermediate rate or, if the veteran is already entitled to an intermediate rate, to the next higher statutory rate under 38 U.S.C. 1114, but in no event higher than the rate for (o).$5,253.39
So, if you still find your self lost in SMC P's possible manifestations, you now know how all those chuckleheads at the VARO feel when they get to figure it out. The general rule is you'll be lowballed -especially on the effective date. Remember, in SMC world, it's not the day you filed for it to get the entitlement. Whoa, Nelly. It's the day you can prove you're entitled. You don't even need to have the proof in the VA's constructive possession. If your medrecs show you were permanently bedridden in 2008, then by golly that's your date of entitlement to SMC R2.
R1 and R2
The easiest way to get to R1 is the most obvious- §3.350(e)(1)(ii). You start at SMC L. If you are entitled to Aid and attendance, you are awarded SMC L #1. If you also lose the use of both your upper or lower extremities, or an upper and a lower extremity, you get another SMC L- #2. Two SMC Ls or any combination of of two Ls, Ms, or Ns gives you a bump to SMC O. SMC N ½ with a K will advance you to O too. But -here comes the legal pyramiding- if you have two of any of the rates between L and N, with no condition being counted twice, and one of the ratings is for Aid and Attendance, you advance to SMC R 1 automatically. No VSO has a clue how to play SMC Chutes and ladders. It requires a lot of study to understand the myriad ways you can do this. It's an art form building them and requires getting rated for the prerequisites and then springing the trap on them before VA realizes they just gave you the ammo to do it.
I advise getting the A&A first. You can also get two A&A awards for separate disabilities that require A&A. This, too, will advance you to R1.
R¹ ($7,436.95) and R² ($8,506.47) (married) are ratings for extensive Aid and Attendance and are an extension of SMC (O). By this time you are starting to resemble a baked potato and any semblance to the Disney character is long gone. It seems sad when viewed in this context but a Vet has to almost be nigh on to Helen Keller in the disability world to get to N. Lt. Dan of Forest Gump fame would only qualify for M. My Uncle Jay with one foot destroyed (and amputated above the ankle) by a through and through GSW had 40% and two Ks, the other for loss of use of a creative organ before they caved in and gave him 100% P&T for PTSD. One thing is for certain in the Potato head game- know your regulation and which SMC you may qualify for because VA is not in the habit of researching it for you and including it in the next paycheck-most especially not the higher SMCs.
The easiest way to make the jump to R 2 is to be seriously R 1 first. The added need for a higher level of A&A (R 2) is most easily accomplished if you-the caregiver or spouse- is officially "trained" by your supervising neurologist or Doctor to provide physical therapy and things like changing the undergarments due to incontinence. A candidate for R 2 must be so helpless that, without the help, he would have to be institutionalized in a hospital or nursing home. Personally, there are a large number of R 1s out there in VA Land who qualify for R 2 but lack the intricate knowledge to argue it successfully. Rest assured that no VA examiner or rater can figure this out so they deny to avoid exposing their ignorance. VA has a "SMC Computer" where you put in the ratings and it spits out the magic SMC(s). The problem is the input. I've only had two R 1s granted at the local level (Waco and Little Rock). A DRO in Ft. Hamilton, Montana told me they always send these to DC unless someone is bedridden and dying…and the conditions are separate and distinguishable.(Breniser v. Shinseki, 2011)
Mr. Potato Head at SMC R2
Higher Special Monthly Compensation is a benefit America accords its most damaged Vets. As you can see, Congress was might picky about how long an arm or leg had to be to get another $250.00 for it. VA sure wouldn't want us gold diggers trying to game the system. I have visions of Spanish Inquisition torture devices to stretch a Vet's arm or leg to get him on the wrong side of SMC N. I'm sorry. I'm jaded. They have hurt me so frequently I'm damaged goods and no longer trust them. But… I have two separate and distinct 100% disabilities and am looking forward to my wheelchair license and a bump to SMC M. Hell, if Winky quits working, I may get a K too which would take me up to P-something.
VA Range of Motion Improvement devices circa 1395
A a matter for dissection, let's look at my collection of disabilities. The moment I lose the use of my lower extremities due to hepatitis secondaries ( fibromyalgia) I'll advance from SMC S to L. Loss of use of lower extremities is an automatic 100% rating. Keep in mind that you do not take the SMC S and add it to SMC L. No way, GI. You leave it behind and matriculate to L. Having arrived, I will then exercise my extra rating for 100% for my Porphyria under §4.115a (dialysis). This bumps me up automatically to SMC M. In addition, I have two (2) ratings that are over 50% (Anemia @ 60%) and a combination of cryoglobulinemia and Fibromyalgia (40%) plus skin scarring (30%) and tinnitus(10%) yielding 62%. Those two individual ½-step bumps carry me from SMC M to M 1/2. You can ride this gravy train all the way to SMC O before they stop the "bump" avalanche. No VSO will tell you this. They wouldn't know it could be done. That would be the difference between $3,790.43 a month versus $7,436.90 (married). Spooky, huh? The M 21 says you cannot use both a 100% bump and a 50% bump even if you qualify for each. This is not bright line law yet and ripe for an appeal to determine if it can be done. The regulation (§3.350(f)(3) and (4) are the pertinent authority and they leave it wide open.
I can see the look of astonishment dawning on some of your faces when you think back to that VSO Rep from DAV saying there simply was no more dough after you get to 100%. Shoooo doggies. 100% is $2,915.55 (single) and SMC N is $4,554.51(single). You can see why this looks like the Mississippi River with all the possible combinations and switchbacks. SMC O purposefully allows the double counting (pyramiding of ratings) to get to R1 or R2. It's the only instance of the violation of 38 CFR §4.14 in the entire CFR that VA sanctions. From the number of comments I get on this blog, I apologize if I do not answer all of them. SMC is the most misunderstood system of entitlement in the VA system of compensation. It took me four years to say I have it somewhat memorized-both the reg and what it says. I pretty much have all the cites to Court precedence memorized as well. That really helps when you don't have to keep looking down to recite stuff at a BVA hearing. You can look the Judge right in the eye and pin him like a deer in the headlights. I always catch the Judge digging into the 38 CFR Part 3 or 4 to check up on me during the hearing or writing fast and furiously. Cool beans, huh? You need as much ammo as you can hump, folks. That's it in a nutshell.
Always remember. Only the rater or a trier of fact (VLJ) can grant you R1. see M21-1, IV.ii.2.H.1.b. It says the clinician cannot diagnose loss of use of extremities. You're wasting your time going out and getting your doctor to say your legs are toast. But, once they deny you, you can go out and get the magic DBQ saying you have LOU. https://www.vba.va.gov/pubs/forms/VBA-21-0960C-5-ARE.pdf
Look at page 8 in Section X below. Right there it asks the clinician to determine that you have loss of use of extremities that would qualify you for loss of use of upper or lower extremities. As I like to point out to Judges, M21-1, IV.ii.2.H.1.b. doesn't say you cannot rebut VA's finding with your own diagnosis. I use the Caluza/Hickson/Shedden and its progeny to support the right of any Veteran to supply the three ingredients needed to prevail. VARO examiners have some unknown "higher level" legal standard of review on loss of use but cannot provide it at a hearing or HLR conference call. You almost always have to get the VLJ to grant because no one wants that on their resume when they're going for the big jump up to GS 13-1.
Johnson DBQ 12-19-2017 8
P.S. The dollar rates I listed for all these SMC Rates constantly change due to COLA rates increasing annually. I used to circle back and correct them to the current year but it's too time-consuming. The rates advertized were for 2016. Obviously, SMC K is at $111.74 in 2021 now and not the aforementioned $103. Ignore that. The financial reward is immaterial to the discussion.
One Month Old Baby Doing Flexion of Both Lower Extremities
Source: https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/
0 Response to "One Month Old Baby Doing Flexion of Both Lower Extremities"
Post a Comment