Can I get a VA award of SMC (K) for my foot

[FormerMember]

SMC K is awarded for loss of or loss of use of an extremity. I just had a real test on this with a friend. In Your case Army man, SMC K is awarded outside any compensation you would normally be given for a disability. You must meet a strict test to receive K for your foot. Ignore your ratings and the percentages. They are immaterial. Here's the test. Can you walk on it? Would it be just as well served if you had it amputated above the ankle and a prosthesis attached? These are the questions that will determine SMC K. If the appendage (from the ankle down) is useless for locomotion or balance, then that constitutes loss of use and you would qualify. If, on the other hand, you could use the foot, in conjunction with your good foot, to stand and balance,then you technically do not qualify. On appeal, if you could prove you could not walk without crutches (not a cane or Canadian crutches- but real crutches under the armpits), then you would prevail.

Loss of use is the defining metric. 38 CFR 3.350(a)(2)(i):

(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;

SMC Ks are stand alone ratings and are awarded in addition to anything else you may be entitled to. There are no prequalifiers. To me, it sounds like you do not qualify if you are having operations to improve function. Loss of use is not final if you are operating on it to "fix" it. 

[broncovet]

Smc'S For "loss of use" in Vets under 100% probably falls into the "theory vs reality" category.  

"In theory" the Veteran gets the benefit of the doubt.

"In theory" Vets can get extraschedular IU if they are unemployable but dont meet the schedular requirements.

"In theory", Veterans ratings are 90 plus percent accurate.  

"In theory" this is a pro claimant non adversarial system.    Its hard to find instances of the VA putting these theories into practice.  They want us to fight them in court before they do.  

 

In regard to SMC, The VA gets around this by doing things like using the term "may" be eligible, and not "Will" "shall" or "is" eligible.  Ben Krause points this out here:

http://www.disabledveterans.org/2014/12/30/mystery-sources-special-monthly-compensation/

If you look at a requirement for SMC S, it isnt hard to see that the VA can conflate that to mean you have to have a 100% disability to get SMC "anything":

38 U.S. Code § 1114    .......

......

"s)If the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran’s service-connected disability or disabilities, is permanently housebound, then the monthly compensation shall be $2,993. For the purpose of this subsection, the requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime."

end regulatory quote.

    While I completely agree with Alex's interpretation that this "100% requirment" applies ONLY to SMC S, you need to remember the Cheveron Deference:

VA interprets its regulations as it sees fit, until/unless the court overturns it as "arbritrary and capricious".  I have seen some smart people indicating VA counts "service connected disability rated as total"  and "100% service connected" as not necessarily the same thing.  For a long time, the courts were not even sure what a "claim" was.  Is it "a singular claim"?  Is it a plural of all the Veteran's "claim's"?   Now the VA says there is no "stand alone" IU claim. Im not sure defining the term "claim" has ever been settled, especially inferred claim(s), ambigious "claim(s)", or even if an "appeal" is a claim or is appeal(s) singular or plural?  Is that why the court uses the term "appealate review" instead of "appeal"?  Expect the VA to continue to "snare" Veterans in this trap, even when "trapping" Vets is expressly prohibited by case law.   

     Remember the VA interpreted "has a service-connected disability rated as total" to mean that excluded a 100% rating for TDIU, up until Bradley-vs Peake, even tho this regulation says nothing about TDIU "not counting" as a total disability.   In other words, the VA takes advantage to interpret its regulations in the MOST ADVERSARIAL way possible, in order to save money, and lets Vets "try" to get their unfriendly interpretation overturned in court.