Welcome to Special Monthly Compensation
Objectives: • Clearly identify when the application of Special Monthly Compensation is appropriate for levels of disability equivalent to S, K and L
SMC • Additional level of compensation to veterans (above the basic levels of compensation payable based on disability ratings of 0 to 100 percent) • Various types of anatomical losses or levels of impairment • Based solely on service connected disabilities (also includes disabilities service connected under paired organs and/or extremities
SMC • Should be inferred whenever there is a severe level of disability involving an extremity or sensory organ or; whenever a 100 % service connected disability is established.
SMC • Rules for SMC include permanency • Disabilities at these levels should for the most part be permanent
SMC K 38 CFR 3.350 (a) • Loss, or loss (L/LOU) of use, of a creative organ • L/LOU of a hand • L/LOU of a foot • Loss of use of both buttocks • Deafness of both ears • Complete organic aphonia • Blindness in one eye, having only light perception, and • Loss of tissue from one or both breasts; or radiation of breast tissue.
Loss, or Loss of Use, of a Creative Organ (1 or more-(K) 38 CFR 3.350 (a)(1) • Award SMC based on L/LOU of a creative organ, if medical evidence of records shows - the acquired absence of one or both testicles, ovaries or other creative organs - a condition of the reproductive tract which results in loss of use of a creative organ, such as retrograde ejaculation or spermatozoa dumping into the bladder in a male veteran, or - the loss of erectile power secondary to a disease process, such as diabetes or multiple sclerosis, in a male veteran.
L/LOU Creative Organ • Note: There is no bar to the payment of compensation or establishment of SC for anatomical loss of a creative organ, when a nonservice-connected (NSC) loss of use of a creative organ existed prior to anatomical loss resulting from service.
L/LOU Creative Organ • SMC K may be considered for other conditions which are part of the reproductive tract, such as a male veteran undergoing removal of the epididymis or prostate gland, or a female veteran who has her uterus or a fallopian tube removed
L/LOU Creative Organ • Note: SMC K can be assigned only once for loss or loss of use of a creative organ even though there may be more than one loss for a creative organ • Example: anatomical loss of both testicles or the removal of the uterus and ovaries will only count as one K regardless of whether both losses occur at the same time or separately.
Question • The requirement for SMC K is met whether there is absence of: a. One testicle b. Both testicles c. One ovary d. All of the above
L/LOU Creative Organ • Elective surgery such as a vasectomy or tubal ligation, would not be considered loss or loss of use of a creative organ.
L/LOU Creative Organ • Loss of use of one testicle will be established when: • The diameter of the affected testicle is reduced to one-third of diameter of the paired testicle • The diameter of the affected testicle is reduced to one-half of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is harder or softer than the corresponding normal testicle • Infertility is shown by biopsy.
L/LOU Creative Organ • Atrophy due to mumps • Award SMC for loss of use of a creative organ if loss of erectile power is shown, with or without penile deformity. Must be factual evidence must show the need for medication, penile pump or the inability to obtain and maintain an erection or to ejaculate. If evidence is not sufficient to award SMC K we must ask for an examination
L/LOU Hand –K 38 CFR 3.350 (a)(2) and 38 CFR 4.63 • L/LOU of a hand • Exists when the function remaining would be no better served than by amputation and replacement by a prosthesis. • Complete ankylosis of two major joints of an upper extremity establishes loss of use of a hand. - Considerations-grasping or manipulation, fine motor skills, weakness, requirements of braces or splints.
L/LOU Hand - K In determining Loss the question must be: What can the person do with that extremity? Is there any effective useful function remaining? Can the hand hold things, button a shirt, or would the veteran be equally well off with a prosthesis?
Question: If a veteran could not pick up a coin or hold a screwdriver, entitlement to SMC K could be established due to the inability to grasp and manipulate tools. A: True B: False
Question • Veteran is entitled to SMC K because the shoulder is ankylosed and in a position above his head. He can manipulate his fingers and grasp tools, but cannot reach his mouth with his hand. A: True B: False
L/LOU Foot- K 38 CFR 3.350 (a)(2) and 38 CFR 4.63 • Exists when the function is no better than if the foot were to be amputated and replaced by a prosthesis • It is unable to perform normal functions such as balancing, propulsion, or ambulation
L/LOU of a foot • Consideration should be given to: balancing, propulsion, or ambulation, weakness, use of canes, braces etc. Other Factors that establish LOU of a foot includes:
L/LOU of a foot • Extremely unfavorable complete ankylosis of the knee. • Complete ankylosis of two major joints of an extremity • Shortening of the lower extremity 3 ½ inches or more. • Complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes.
L/LOU of a foot • Is there complete foot drop? • Can the veteran walk or is the foot able to support the veterans weight? If a veteran cannot balance on his foot or push off from the foot in walking entitlement to SMC K for loss of use of a foot may be met.
L/LOU of a foot • Tucker vs. West The responsibility for determining loss of use lies with the rating specialist and not the examining physician.
L/LOU of a foot • Examinations should provide an objective description of remaining function, strength and pain.
Loss/LOU of a hand or foot 38 CFR 3.383 • If there is loss or loss of use of a hand or foot which is service connected and the veteran suffers loss or loss of use of the other paired extremity as the result of non service connected disability not due to willful misconduct-Compensation will be paid as if both extremities were service connected
L/LOU both Buttocks 38 CFR 3.350 (a)(3) and 38 CFR 4.64 • Loss or loss of use of both buttocks exists when : Severe damage by disease or injury to muscle group XVII (DC 5317) bilateral Inability to rise without assistance from a seated or stooped position Inability to maintain postural stability (stand erect)
L/LOU both Buttocks • Must be able to perform activities without assistance If hands or arms are used or, for postural stability an appliance is used ……. SMC will still be established !
L/LOU both Buttocks Watch as veteran stands from a seated position in a chair Is the veteran able to stand up straight from a stooped position? Is the veteran able to stand erect with torso over legs?
Blindness of one Eye-K 38 CFR 3.350 (a)(4), 38 CFR 4.79 • SMC K for the loss of use or blindness of one eye exists when there is light perception only (LPO). • SMC K is also established when there is anatomical loss of the eye • LPO exists when there is inability to recognize test letters at a distance of one foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at three feet.
Blindness of one Eye-K • For SMC purposes for each level of SMC the degree of blindness is specified. • When there is total blindness in one eye which is SC and the veteran has suffered a total blindness in the other eye as a result of a NSC disability not the result of willful misconduct, compensation for total blindness in both eyes will be established as though both eyes were service connected. 38CFR 3.383
SMC K for Deafness of both ears 38 CFR 3.350(a)(5) • Deafness of both ears exists when there is absence of air and bone conduction. • Absence of air and bone conduction exists when a licensed audiologist under current testing criteria shows that bilateral hearing los is equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation under the rating schedule
SMC K for Deafness of both ears • A numerical designation of XI or 100 percent in both ears meets this requirement, while a designation of less than XI in either ear will preclude entitlement. • If total deafness in one ear is SC and the veteran suffered total deafness in the other ear as the result of a NSC disability, not due to willful misconduct, the total deafness in both ears will be rated as if SC. 38 CFR 3.383 effective December 1, 1965
Question • A veteran is entitled to SMC K for deafness if hearing is rated at: a. Both ears 90% b. Both ears 100% c. One ear 10% d. One ear 90%
Complete Organic Aphonia 38 CFR 3.350 (a)(6) • Complete Organic Aphonia exists when: There is a disability of the organs of speech that constantly precludes communication by speech.
Complete Organic Aphonia • Usually a result from the loss or paralysis of an organ of speech, such as the tongue or larynx. • The veteran must be unable to communicate by voice or whisper through normal speech. Example: a total laryngectomy meets the requirement for SMC K. • Stenosis of the larynx or loss of the tongue may also result in aphonia
Complete Organic Aphonia • The use of other organs of the body or prosthetic devices to provide voice sound will not preclude entitlement to this benefit.
Loss of tissue from one or both breasts • Entitlement to SMC for loss of tissue from one or both breasts is limited to women veterans. • PL 107-330, enacted December 6, 2002, provides for the payment of SMC for loss of 25 percent or more of the tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy), or • when breast tissue has been subjected to radiation treatment. • Note: Before enactment of PL 107-330, entitlement to SMC existed only upon complete surgical removal of breast tissue (or the equivalent loss of breast tissue due to injury), in which includes radical mastectomy, modified radical mastectomy and simple (or total) mastectomy.
Loss of tissue from one or both breasts • Anatomical loss of a breast exists when there is complete surgical removal of breast tissue or the equivalent loss of breast tissue due to injury. • Radical mastectomy, modified radical mastectomy and simple (or total) mastectomy result in anatomical loss of a breast, but wide local excision, with or without significant alteration of size or form, does not
Loss of tissue from one or both breasts • Radical mastectomy- removal of the entire breast, underlying pectoral muscles, and regional lymph nodes up to the coracoclavicular ligament. • Modified radical mastectomy removal of entire breast and axillary lymph nodes (pectoral muscles remain intact • Simple (or total) mastectomy removal of all breast tissue, nipple and a small portion of the overlying skin (muscle and lymph nodes remain intact) • Wide Local excision (including partial mastectomy, lumpectomy, tylectomy, segmentectomy and quadrantectomy) means removal of a portion of the breast tissue.
Loss of tissue from one or both breasts • Fast Letter 09-25 dated June 4, 2009 Review of all female veterans granted service connection for injury or disease of the breast and/or reproductive system • A review showed many of these women did not receive the SMC K benefit for loss of use of a creative organ or loss of use of tissue from one or both breasts
SMC “k” Based on Service Connection for Mastectomy, Loss of Breast Tissue, or Radiation Treatment • Effective November 1, 2000, section 1114(k) of the United States Code was amended to allow SMC for Women Veterans who suffered service-connected loss of one or both breasts, including loss by mastectomy. • If service connection was established for loss of one or both breasts, including loss by mastectomy, before November 1, 2000, and SMC “k” was not granted, grant the benefit effective April 16, 2008 (one year prior to the date of administrative review), in compliance with the provisions of38 C.F.R. § 3.114(a)(2).
Summary of SMC K • SMC K covers single losses of the hand, foot, buttocks, creative organ, blindness, LPO deafness, organic aphonia and anatomical loss of one or both breasts (mastectomy and radiation) • May be entitled to more than one K based on combinations of loss or loss of use. • No more than three K’s are assignable and the basic rate of compensation payable of the basis of degree of disability may not exceed the monthly rate under SMC L
SMC L • When a veteran suffers multiple losses such as the loss of both lower extremities the level of loss is also important in arriving at the correct rate of SMC The upper extremities have three levels which are the hand, elbow and shoulder and the lower extremities consist of the foot, knee and hip
SMC L • Any loss or loss of use below the elbow is considered at the hand level • Any loss or loss of use below the knee is considered a loss at the foot level.
SMC L 38 CFR 3.350(a),(f) • Entitlement to a level of Special Monthly Compensation equivalent to L exists when: - anatomical loss or loss of use of both feet. - anatomical loss or loss of use of one hand and one foot - blindness in both eyes with vision 5/200 or less or the visual field restricted to 5 degrees or less - permanently bedridden or in need of aid and attendance
L/LOU both feet- L • Anatomical loss is met with a below knee amputation of both lower extremities • A SC BKA of one extremity with BKA of the NSC lower extremity not due to willful misconduct 38 CFR 3.383 • Loss of use is held to exist when there is no better function than if the lower extremities were amputated and replaced by a suitable prosthesis. This means the feet are not capable of functions such as balancing, propulsion or ambulation
Question • Vet is SC for a stroke he suffered while on active duty, as a result of the stroke he has a useless right hand and foot drop on the right lower extremity requiring a brace. Does this veteran meet criteria for entitlement to SMC L?
Loss or loss of use of one hand and one foot 38 CFR (b)(1) • The loss of use of a hand and foot is held to exist when the function would be no better than if it were amputated • These combinations should be evaluated under one diagnostic code at 100 percent. • A common mistake of raters is to evaluate these as separate disabilities which would result in an evaluation less than 100%. DC’s for these combinations are between 5104 and 5111
Blindness of both eyes38 CFR 3.350 (b)(2) • SMC L for vision exists if the bilateral visual acuity is 5/200 or less. This means: Blindness in both eyes with visual acuity of 5/200 or less; or concentric contraction or visual field restriction is to 5 degrees or less in both eyes (equivalent to 5/200)
Blindness SMC L An evaluation at 100 % based on acuity less than 10/200 but not to 5/200 does not entitle a veteran to SMC L. The actual disability must be 5/200 or less.