SMC–YOU CAN’T GET THERE FROM HERE


I’ve got a wicked case of RA in the R hand from too many legal briefs at an interim desk. I’ve already lost R ring and pinkie to it and now, temporarily the whole hand. It looks like an over inflated balloon. This is one-handed but I have to. I spotted this comment from one N Shari and it breaks my heart. VA has constructed an SMC system taken from Congress’ 38 USC §1114 to prescribe what you get for what and when it’s applicable. No one ever said it was equitable. We litigators have learned to work around the impediments and obtain the highest SMCs because of the flaws in VA’s logic. As many times as they say Auer/Chevron deference should be granted to the Secretary’s cockamamie interpretations, the Court has often held in the obverse when presented at the CAFC. Thank you, Howard.

But first, a hard charger advocate, Jim Perciavalle, contacted me yesterday morning and informed me of a CAVC oral brief being argued that morning before Allen, Jacquith and Falvey on SMC. It’s a daisy. It’s the first time I’ve ever seen an OGC law dog totally bushwhacked with a question who kept trying to blow it off with M 21 logic. Finally, 11 minutes into her brief, she had to beg for a pregnant 4-minute pause to consult with the big boys and get a new legal authority answer. Rots-a-ruck, lady. I’m guessing those judges were all fixated on why her left nostril was 6 times larger than the right. Hell, I was!

This pretty much demonstrates that not only do the local yokels have any idea how this SMC poker game works, but that they are forced to resort to saying some of the damned funniest things to blow off the question. In this case, Ms. Mellissa Willis, hopefully no relation to Bruce, whips out the Mobius loop of illogic and says, no, we’re not asking for Chevron deference for our interpretation of §1114 and contradicts herself less that 3 minutes later. Then says her authority flows from the M 21. Here’s the utube link. It’s hilarious-like watching a deer standing in the road pinned by your headlights. Clueless.

Watch Judge Allen ask her if multiple 1/2 step awards under §3.350(f)(3) can be awarded. Or if (f)(3) and (f) (4) can be awarded simultaneously. Silence…then the obfuscation begins. It’s hilarious tragicomedy and should be required viewing for any who venture into this field to litigate.

Now for Ms. N Shari’s query:

Good morning sir,

I have a question in need of your expertise advice for additional SMCs. Like the previous question, I am still puzzled about the ½ and full steps on the SMC chart.

Injury Snapshot:

I am currently 100% P&T, Car Grant recipient, HISA approved, SAH approved, Chap 31 ILP client for SEH rehab concerns, SSDI recipient, Medically Retired from work, and now SMC L ½ rated, effective 09/29/2021 due to all of my injuries. I just recently won a CUE for not rating my surgically repaired left hip replacement due to reevaluation of 90% after 1 year. They had to back date my CUE to 7/29/2019, which was the day that I was originally awarded the Aid & Attendance for the Left Drop Foot, along with the standard verbiage was, “In need of A&A of being so helplessness….”

I have gone through the Pain Clinic, Spinal Cord Stimulator patient, RFA patient, Left Ankle surgery (2018), Botched VA Left Hip Replacement (2015), and 2 revision hip surgeries (2018). Diagnosed with Restless Leg Syndrome. And cannot performed a few of ADLs too.

I have a chair lift in my home for stairs, ramp accessible, grab bars in shower and near toilet, ADA raised toilet with toilevator installed, about to get adaptable auto attachments, VA approved motor scooter, right ½ inch-built shoe due to left leg longer due to botched surgery, left shoe modified with AFO inserted into the shoe, due to I cannot put on myself

I strongly feel that I have been short changed on my proper rating! I have listed my injuries below for a better visual.

Current Disabilities:

Left hip replacement: 90% (additional 2 resurface hip surgeries)
Depression: 70%
Radiculopathy of left lower extremity with drop foot: 60%
Lower Back: 40%
Radiculopathy of the lower extremity (femoral) with left drop foot : 30%
DJD right ankle: 20%
residuals of fracture of left medial malleolus: 20%
Radiculopathy of the right extremity: 20%
R knee: 10%
R hip flexion: 10%
R hip extension: 10%
R hip abduction: 10%
R wrist sprain: 10%

L hernia scar repair: 10%
L ankle scar repair: 10%
L thigh myositis ossification: 10%
L thigh ext: 10%
L Ostemacia (soft bone): 10%
Nonservice connected for Flat Feet: 0%

Questions:

1.) Do you think I am due the ½/ or full step in SMC lineage? The recent Decision Letter only showed rating rationale for the previous 2 (hip and right sciatica) injuries, but failed to mentioned their selected injuries and not mentioned of the other (right hip, knees, atrophy, and drop foot), It seems like they were just to make me go away?

2.) I thought I should have been SMC N or at least M for loss of hips or loss of legs, which was not afforded to myself?

3.) Should they have evaluated all of my mentioned injuries, since they were not the same/repeats?

5.) Should I get a separate evaluation for calf atrophy for muscle injury? The DC code is 8520, but should be in the Muscle Injury DC range?

thx in advance

Here’s my response. First, no offense intended N Shari, but I abhor being called sir. I enlisted. The only thing that gets my goat worse is “Welcome Home” from someone who was probably protesting the war when I did actually return to the world in ’72. You folks are 50 years too late, so stop it. Don’t waste your breath. I doubt any of us boots on the ground folks will ever forget that bitchslap. No amount of apologizing can erase it.

So… the envelope, please.

First, you are not 100% rated. From your list of disabilities provided, you are TDIU or, I suppose, in the VA vernacular, 100% combined. When you go down the combined road, VA will pile up every single thing you are rated for and use it as the predicate for the A&A. The only way to improve the SMC rating is to get something new that is independently ratable and not part of that A&A rating. Well, that or artfully find the way to divorce the needed element from the conglomerate and develop it as a standalone SMC L. This VA “everything but the kitchen sink” technique often screws you out of SMC S in the period before you got to SMC L for the A&A. It’s useful though to prove you have separate and distinct rated disabilities to prevent the kitchen sink scenario. Once VA declares a disease/injury the predicate for a standalone 100% and some others as the 60% separate and distinct rationale, they have made a decision that is protected. Use Medrano v. Nicholson,  21 Vet. App. 165, 170 (2007) (The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board.). Thus, they cannot come back and insist all the SMC S ingredients are the reason for the A&A. The reason is simple. If they grant you SMC S, there must be a subgroup of ratings 60% or higher that comprises the “independently ratable”  quantity to qualify. It would be injustice to later say it’s all one “disease entity” or “physical injury”. This is how you begin to prepare your defense-waaaay before you get to SMC L for anything.

By rights, your 90% for the hips should be your TDIU. The PTSD should have pushed you to SMC S. Then, the aggregate stuff could be used later to butress an A&A with the  70% PTSD used to grant your half-step to the intermediate rate between L and M (L 1/2). If you look at your most recent Code Rating sheet, you will see how they break it down. The actual description of the A&A should list all the things they use(d) to grant it.

By operation of law, §3.103 admonishes the Secretary to grant every benefit they (pronoun?) can come up with. Buie precedence instructs that there is no law saying the disabilities have to be arranged chronologically- or in any particular order at all- for that matter. Failure to perform this step produces absurd results which is forbidden under Sambonis v. Brown 1994.

VA groups similar maladies in subsets. If you had multiple SFWs, they would be rated separately ( see §4.25(b). But… if you got one more new one at 50% it would not be separate and distinct and independently ratable for a half-step bump if the predicate for the A&A was all the other muscle group disabilities. It would just be added to the A&A mix.

§3.350(f)(3), excluding TB which you did not mention you have, says:

(3) Additional independent 50 percent disabilities.

In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above.

Similarly, §3.350(f)(4), in pertinent part, states:

(4) Additional independent 100 percent ratings.

In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability[singular] independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. So, we now look at your L & 1/2 which under VA law is

(i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114 (l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use.

So, let’s examine the SMC L and ½ half rating you have. First, it’s really couched in SMC  as SMC P (L 1/2 + K for LOU of the one foot). VA is giving you TDIU for either the 70% PTSD or the hip(s) at 90%. They are the only two that qualify as a single standalone rating of 60% or more under §4.16(a). Radiculopathy of left lower extremity with drop foot at  60% has to be the 1/2 step kicker under §3.350(f)(3). You should have a single rating under DC 8520 at 80%- not 60% if they have held loss of use. But §3.350(f)(3) permits combinations of disabilities to add up to 50% to qualify to whereas (f)(4) has to be a true schedular 100%.

The Oral Briefing utube link above to Barry v. Denis the Menace argues whether multiple awards of (f)(3) -or (f)(4)- can be awarded. I personally think so but you don’t see a JD after my name nor a Judge in front of it.. I do not see anything in the language of either reg subsection specifically limiting it. Logic dictates that VA is not overly generous so they would never set up a merry-go-round where you could keep collecting 1/2 step gold rings each time you passed the dispenser. I do think personally that both bumps could, and should, be awarded at least once though. F3 and F4 are sure ambiguous and the default setting should be the interpretation which grants the greater benefit to us.

I just had a recent shootdown on a L 1/2 bump and here’s why I lost and am appealing it.

VA’s M 21, which is not law or even germane most of the time, says (distilled)

The M21 suggests that SMC(l) has a schedular/extraschedular requirement. 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 of aid and attendance.

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”.

Boy howdy is that ever a lot of permissive ‘mays’ and purely subjective language to arrive at a requirement for a 100% schedular or combo interpretation. I’m not buying it.

Breniser v Shinseki 2011 is your North Star to get over the hump of trying to assemble all your disabilities using 3.350(f)(3)(4) to get to N or higher. VA calls SMC O the maximum rate. It is, technically. Anything above that has to be a need for a higher level of A&A as in R1, R2 or T. There are 4, and only 4 ways to get to O. You need any two of the four  conditions in §3.350(b)(1-4)-i.e., LOU of the upper or lower extremities or a hand and a foot, blindness, the need for A&A or being Bedridden. Period. Think back to your old Chutes and Ladders game.

You are suggesting you should be able to endlessly get bumped up using all the existing ratings you have. Check out SMC N. You’d need to physically have your legs removed at the hip in order to employ it as a kicker bump to SMC O.

So, how do you get to a higher rating? Based on what you present, I don’t see a path. The recent HLR review I got on 9/28 says:

“Note: a 100% disability and a need for regular assistance with the activities of daily living is required to meet requirements for entitlement to special monthly compensation based on Aid and Attendance. However, the 100% disability can be a single SC disability or multiple SC disabilities of a single disease entity such as Parkinson’s disease or multiple sclerosis. The 100% disability can be the sole factual basis for the need or it can be a combination of need for aid and attendance due to the 100% disability or other SC disabilities to qualify. The actual need for Aid and Attendance (A&A) must be wholly or partially due to service-connected (SC) disability evaluated as 100-percent disabling. This means that we must have evidence the 100% condition has at least a small part in the need for aid and attendance. (§3.352, §3,351(c)(3), 38 CFR 3.350)[sic]”

But note the clear  and uncomplicated language used in §3.351(c)3) cited as their authority…”(3) Establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a). Then look in §3.352(a) and tell me where it says you need that 100% or combo of shit equaling 100%. I’ll wait. The closest thing is the postscript catchall at the end of the laundry list for  inability to accomplish the daily activities of living says ” or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.”

This is why the BVA and the higher Courts refuse to consider the M 21 as the authority. The VA makes this shit up out of whole cloth and then tries to pawn it off on you like you just graduated from turnip wagon driving school and are educationally challenged.

I will never use M 21 in my legal briefs to support my argument. It will get you laughed out of the BVA or the CAVC. You’re relying on what? The M 21? Gidouttahere. They change that on average 135 times a year depending on how much new CAFC/CAVC precedence overturns the established parameters in the current version of M 21.

A possible scenario exists for you, N Shari, to say your PTSD creates, in its own right, a need for A&A independent of all the other stuff used to grant A&A #1. It appears most of your disabilities revolve around your musculoskeletal disabilities-ergo, the need based solely on that huge subset of neuropathies. If your PTSD can be shown-alone- to cause inability to remember to take medications, or protect you from the hazards of life, then try that avenue. You simply do not have multiple Breniser conditions which can advance you.

Lastly, I will tell you I had a guy come to me who amassed 22 10% ratings to reach a combo 100%. VA kept reducing him on one or another back to 0% claiming improvements. He had a hard time going to work because he was always at QTC c&ps attempting to protect his precarious 100% from reduction. You never get anywhere trying to glue 10%s and 20s together to get to 100% and, by extension, the higher SMCs. It wasn’t built that way. SMC is a quality of life booster for after you get to 100%. It’s designed to help you out with the exorbitant costs of becoming severely disabled. VA purposefully designed it with a gazillion Catch 22s to make it sound richly rewarding but with no means to advance to the higher levels.   Whoa there, buddy. You weren’t born on a Thursday. You don’t qualify for SMC. I can’t impress on Veterans how long it takes to develop any level of mastery to be able to gerrymander your SMC into the highest and best rating. Each Veteran’s combo of disabilities has to be studied, analyzed and parsed to figure out how to assemble them to yield the best outcome.

I wish I had better news in this regard, sir.  I also apologize if I lost you or others after about three paragraphs. SMC is like trying to turn water into wine.  It tasks me but I love it. It’s akin to advanced Alchemy 401.

P.S. Cupcake took this picture in Alabama somewhere when we were back there in 1990 on vacation. I can’t find the one we took of Dottie’s Beauty Salon and Taxidermy.

About asknod

VA claims blogger
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9 Responses to SMC–YOU CAN’T GET THERE FROM HERE

    • nsharif98 says:

      Ms. Holly, with warmest sincerity I have to apologize for the wrong salutations! As previously reading the thread that prompted myself to piggyback on, I believe the name was Rob? I just thought he would be assisting? I wanted to let you know that you know that you have made my day and year, meaning that I have been battling the VA since 94 and this is the curtain call for me. I have used my little experience to help fellow vets in need, which gives me joy and not to think about my current issues. This website is a gem! And I was entertained by the pictures too (lol.) As from the detailed answers, I know that you were using a lot of brain cells? Again, thanks I will definitely be guiding vets towards your informative website.

      thx again

      Also, I am not sure if this is the right forum location, but I do have another VA question, not for the SMC realm that will need some answering and I was wondering if you can point me in the right direction?

      The question is; Can a C&P examiner change his medical rationale from a previous C&P write up and visit to justify his medical rationale and the next C&P exam?

      Let me be specific, I had a long drawn out lower back and sciatica appeal, that required years of appealing and evaluations, which led to an evaluation in May 2012, where the evaluator had to ask the standard questions about the back (do you have bowel problems and the infamous question of, “Do you have Erectile Dysfunction (ED) problems?” which I answered, “YES” telephonically because he had forgotten to ask those questions while in the exam room. Immediately after the dust cleared, I check my Healthevet for the rationale to check what the evaluator said and it was on point and verbatim.

      So the following year I put in for ED in secondary to hip, back, and I believe now sciatica?

      While in the exam room, I casually mentioned that our past conversation about the scenario, which he casually smiled and started typing. As the eval for ED ended I would leave and wait for the standard checking of his medical rationale, but this one took longer than usual. I say that to say that I wholeheartedly believed that he went back in to his CAPRI, CPRS systems to change his rationale in most places to justify his medical rationale of not agreeing with ED and to top it off he selected another disability, which I did not select as secondary identifier, “Prostatitis” rated at 0% percent.

      Needless to say that I was not happy with the bait and switch and eventually the denial for ED.

      Over the years I felt some kind of way and it never set right with myself, so I started to inquire and check my records to notice that he did in fact “AUGMENT” my records, which read, “ADDENDUM” as the new rationale in May 2014 (two years later.)

      I have tried unsuccessfully to get the original record that was changed, due to the systematically blocking out and maybe lack of experiencing of navigating deeper into CPRS from two Release of Information (ROI) campuses?

      But after years of researching I read an article that the medical records is still in there, it is just merely, “REDACTED” from the public eye. So I am the process of yet again, trying to get my record, this time from the campus Information Security Officer (ISO), which I believe I am being stonewalled? I did fill out the proper paperwork (VA Form 20-10206 FOIA form) with the same specific as mentioned above.

      1.) Is there a recourse for the C&P evaluator if in fact he is caught in what I see as “unprofessional” practices?

      2.) Is there a higher approach or method to get my redacted records?

      3.) I am aware that I can put in a “CUE” in the event of getting the original medical rationale.

      4.) Given all of my disabilities, I can just put in ED secondary to all of my compensated injuries and leave it alone (so tired and disenchanted with the VA process)……..

      thx in advance

  1. cdneh says:

    Somewhere, I dunno where it is, Chase had a photo of a place here in Arkansas. Vilonia Gun and Drug. Seriously.

  2. asknod says:

    Sorry Fred. Only you can do that. Click on Leave a comment and it and it opens a box that says Notify me of new comments and one for posts via email. Click the “posts”box and your wish will be granted. This is a self-help blog, sir. Some things are just outside of our ability.

  3. Fred L. Marvin says:

    Please change my e-mail address to fredlmarvin@charter.net . If you do not change the address, they will be refused after 31 October 2021 because Texas.Net is stopping all e-mail service.

    Sent from Mail for Windows

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