SMC–THE PLASTIC FANTASTIC LOVER


I see from the asknod statistics that the most viewed items seem to be articles about Special Monthly Compensation- or SMC in VA parlance. I think, to VA, it is an inconvenient truth; an entitlement that has to be granted but the failure to grant can be (and will be) excused as an innocuous  administrative oversight. Well, that’s what the VAOIG is for. Errr, right?

Well, as they say down at Rentawreck®, “Not exactly.” About the only thing the IG will ever do is note the RO was in need of remedial training on the applicability of ancillary SMC entitlements and the VARO Director and VSCM sign a memorandum agreeing shit happens and never to get caught doing it again. Keep in mind, this isn’t the equivalent of a USAF ORI (Operational Readiness Inspection) where a 130 sets down unannounced at your airpatch and disgorges 20 officers with orders to implement a Defcon 1 test of readiness. You don’t get any warning. If the Base Commander is out duck hunting off base and incommunicado, say bye bye to that first star.  The OIG, on the other hand, telegraphs its intentions weeks in advance.  In Seattle, they call the RO travel coordinator to book rooms at the Alexis Hotel across the street. I’m sure the rhetorical question on everyone’s’ lips is ‘Gorsh. I wonder why they’re in town?’

My mantra is far more direct. I prefer to go on the warpath. Fine. Administratively oversight me once, shame on me.  Administratively oversight me twice and I call malfeasance and sharpen up the class action punji sticks for similarly situated SMC Veterans. If I have 25 cases of this proclivity to underrate Veterans on the proper SMC rate, then to me its not an innocuous oversight but a conscientious, perennial effort to ignore procedural due process under §3.103(a):

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

The VBA gomers drive by this procedural due process guarantee every day pretty much the same way they did §3.303(b) until Walker v. Shinseki (2014). Pretty soon it’s just a blur and they begin to ignore it. You do not see the word “may” in there. The operable phrase is the “It is the obligation”. As many times as you remind them of it and get it corrected in Phoenix, you’re playing Whack-A-Mole a week later in Roanoke.

Our Recently Emasculated Plastic Fantastic Lover

Bow your heads in prayer for poor Mr. Potato Head™. He was recently gender-neutralized to satisfy some offended soul. I used him back in 2013 (with free advertizing for Hasbro Toys) as a perfect example of the essence of the building blocks of SMC. Once you attain 100%/TDIU, the SMCs from L to N are applicable.

SPECIAL MONTHLY COMPENSATION–WHAT IS IT?

Something I think many Veterans fail to grasp are the intricacies and nuances of phraseology used in §3.350 that confuse rather than illuminate. Take the VA’s unique way to describe loss of use of the lower extremities. §3.350(a)(2)(i) summarizes this in VAspeak:

(i) Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis;

 

First you have to go back to §4.10 to grasp functional loss. What VA will studiously avoid telling you is that, just as in PTSD/MDD c&ps, VA gets first right of denial. In other words, it would be futile to obtain and submit a beautiful IMO (Independent Medical Opinion) from your neurologist stating your fall danger is so great that you are almost guaranteed to get a cerebrovascular accident (CVA as in concussion) with resultant permanent brain damage if you insist on perambulating unattended. By all means, get the IMO but hold on to it until VA denies you.  You never play (M) 21 and show your cards to the dealer at the beginning. Here’s why:

The responsibility for determining whether there is loss of use rests with the adjudicator; the Board may not ask a clinician to determine whether there is “loss of use.”  See VBA Live Manual M21-1, IV.ii.2.H.1.b.

I’ve had raters who wrote that “no doctor has, as yet, declared that the Veteran has elected that his leg should be amputated below the knee with use of suitable prosthesis so the claim for loss of use of the lower extremity remains denied.” One has to wonder where they found that phrase in the M 21. Even worse. Obviously they tried it on Mr. Dempsey W. Tucker in Tucker v. West (1998) and here I was fighting it twenty years later in 2018:

 

The relevant inquiry concerning an SMC award is not whether amputation is warranted but whether the appellant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. See 38 C.F.R. §3.350(a)(2), § 4.63. The Board concluded that because his situation did “not warrant amputation,” the appellant was not eligible for SMC. Tucker vWest, 11 Vet.App. 369, 374 (1998).

One of the intricacies of SMC is to understand it is an entitlement awarded based on quality of life issues above and beyond what any 100% rating can provide. Many people qualify for the concept of unemployability due to a 100% rating or a TDIU comprised of a single disability. Once you pass through this qualifying portal, your entitlement to any of the higher SMCs (S, L,M,N,O,R1,R2,T) begins, assuming the disabilities are independently ratable, service connected and you qualify. The more serious the loss or combination of losses, the higher the rating.  SMC ratings are based almost entirely on an increasing degree of severity as enumerated under SMC P in §3.350(f). However, there isn’t enough paper to cover every conceivable combination of SMC. Being able to argue two entitlements for A&A is just one avenue of many. Unfortunately, very few attorney websites delve into these discussions. Meaningful, boots on the ground SMC intelligence discussions on the Internet are in short supply. Most Vet Attorneys and agents don’t have time to discuss the matter. Their paralegals are trained to do intake and VSOs have never heard of it. I have great respect for Hadit.com but here again, people with little or no hands-on litigation experience try to convey their stories as the ‘how-to’. Sherpas they ain’t. What’s sauce for the goose is most definitely not sauce for the gander in SMC.

As usual, VA gets to be the arbiter and determine the definition of ‘qualify’. I can’t think of how many Vets who go for SMC S and discover that their TDIU is based on §4.16(b) and not (a). Bingo. You don’t qualify. Your IU was based on multiple disabilities-not one single, independently ratable disease or injury. Considering my argument above about §3.103(a) and the holding in Buie v. Shinseki (2010), VA is required by law to maximize your entitlement(s) as high as they can. VA interprets that to mean if you beg for it, they have to consider it- but not a moment before you begin begging, mind you. That is not how this is supposed to work. Granted, VA is not renowned for being self-starters, but the moment you qualify for SMC L, there should be an in-depth review to see what else is behind Door number 2.

Therefore, if you are doing this yourself pro se, I suggest  you be anally specific when filing for the higher SMCs. Be sure to point out the date the first doctor stated your disability arose to a compensable SMC level. Cite to the regulation that supports your authority. Below is an example.

redact 526 for LOU and highest SMC 2

One of the most clever SMC traps VA employs is to award SMC L under §3.350(b)(3) for Aid and Attendance and throw everything but the kitchen sink into the rationale. Trying to extricate a single one (interstitial disease in the example above) and expand it to merit a separate A&A entitlement to  SMC L  thus becomes an art form. Once again your biggest and best cite to precedence will always be the Buie holding requiring VA to obey §3.103’s codicil to maximize what you should get short of pyramiding under §4.14. A 100% schedular rating for it is essential to even begin the argument for entitlement. Here’s the authority in M 21ese:

The M21 suggests that SMC(l) has a schedular/extraschedular requirement.  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.

In addition to the above, 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”. (emphasis added).

Winning SMC claims is not for the faint of heart. It takes a long time to fathom some of the various routes you can take to get where you should be. It hinges in great part on how much you have already muddied up the waters before you begin your quest for higher SMCs in earnest. Half of my battles for my SMC clients are navigating around the cards my client was dealt before I got there. Fortunately for us, VA’s finest no more comprehend SMC than they do the Unified Field Theory so we’re relatively safe once we escape the the local yokels’ jurisdictions and proceed to appeal. Well, almost. I’ve seen some pretty lopsided BVA SMC decisions that were so obviously bogus that we were able to resolve them at the Rule 33 conference. The worst one was the VLJ granted LOU for two (2) losses of use of left and right lower extremity under SMC K but refused to combine them into one SMC L Loss of use of BOTH lower extremities. This, of course, fenced him out of his rightful SMC R1 entitlement. I guess what’s scary is to think of how many Veterans with VSOs who might have walked away from this thinking the BVA gomer was right in his interpretation. What am I saying. They don’t teach SMC to VSO service officers. It’s like the flat earth society. The world ends here. Do not attempt to exit the reservation.

Thank you to all the cartoon contributors. Please remember that although we do not share the same politics, the humor is still indisputable. I can’t wait for my neighbor Gary Larson to amass a new collection. After an extended hiatus, he’s back in the cockpit again. How cool is that? ”Neighbor’ meaning he lives on Fox Island which is about a .30 ’06 round to the east of me. Hey, in this day and age where Mr. Potato Head© can be divested of his gender-affirmative prefix noun-let alone have his personal pronouns redefined- I should be able to claim BFF status with whomever I choose.

Lastly, if you should choose to do battle with VA over the higher SMCs, you would be well-advised to seek counsel to do so. I’ve been doing it since 2012 but I still enjoy walking point and learning new ways to spank these chuckleheads. As quickly as VA comes up with a denial band aid, we have to learn how to counterattack. I’m sure it’s been that way since the War of 1812.

About asknod

VA claims blogger
This entry was posted in 100% ratings, Aid and Attendance, Duty to Assist, Humor, Lawyering Up, R1/R2, SMC, Tips and Tricks, VA Agents, VA Attorneys, Veterans Law and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

2 Responses to SMC–THE PLASTIC FANTASTIC LOVER

  1. john terence king says:

    VA is supposed to be helping vets to what is coming to them. Instead, they seek every opportunity to “Protect the US government’s money” and deny us a benefit. Regarding SMC I got “S” when I had TDIU because I also had an independent 60% disability. I think higher levels of SMC would be a complete mystery to most vets.

  2. Re: cartoon. It don’t mean nothin’ means a lot. Thanks.

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