First , a close look at a BVA decision on SMC that is completely lost in space. While it may appear the Vet (Fred) has knocked one out of the park, VA has instead substituted Spam for Prime Rib dinner.
Sorry about the link problem. Repaired.
if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs, or one foot, or one hand, or both buttocks, or blindness of one eye, having only light perception, has suffered complete organic aphonia with constant inability to communicate by speech, or deafness of both ears, having absence of air and bone conduction, or, in the case of a woman veteran, has suffered the anatomical loss of 25 percent or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy) or has received radiation treatment of breast tissue, the rate of compensation therefor shall be $103.23 per month for each such loss or loss of use independent of any other compensation provided in subsections (a) through (j) or subsection (s) of this section
Please note the clear indication of one (nung) (một), (une) as in singular. One foot. One hand. One eye.
But, SMC (l) states:
if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance, the monthly compensation shall be SMC (l).
Please note the clear indication of the word “both” as in two feet. Or two eyes.
But SMC (O) states:
if the veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more subsections (l) through (n) of this section, no condition being considered twice in the determination, or if the veteran has suffered bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 60 percent or more disabling and the veteran has also suffered service-connected total blindness with 20/200 visual acuity or less, or if the veteran has suffered service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and the veteran has also suffered service-connected blindness having only light perception or less, or if the veteran has suffered the anatomical loss of both arms with factors that prevent the use of prosthetic appliances, the monthly compensation shall be SMC (o).
Fred has loss of use of two feet ergo SMC (l). The Aid and Attendance, although it would also entitle him to SMC (l), now acts as a force multiplier and the two disabilities-in concert- act to boost him to SMC (o). The Vet will notice someone has borrowed the Veterans Law Judge’s copy of 38 USC § 1114(o) or he does not have a copy on file. The absence of discussion on SMC(o) in the above decision,in spite of an intensive discourse on all the other possible combinations of SMC (p) seems to be an obvious oversight… or is it? I contend VA is entitled to the Presumption of Regularity in their decision-making unless it is irregular and incorrect.
SMC is a complicated regulation with many conjunctive and disjunctive pitfalls. What it is not, is ambiguous. Congress was mighty picky about what you needed to advance from SMC (k) to (l) -or (o). Absent the required ingredients, there is no advance. Here VLJ Matt Tenner has overlooked SMC(o). Was it intentional?
Stay tuned for more notes during the show.
One thing Vets are going to see is what I described on the show. More and more of us are timing out at 60-70 years old and have time now to pursue their illness/injury. Handwritten records are going to put the brakes on this unless they are transcribed. VA raters were never far thinkers. The news flash is they are getting worse and relying almost entirely on the M21 abortion like a HAL 9000. We know how that story went down.