Jim Radogna

Loss of use of a foot is held to exist when its function would be no better than if the foot were amputated below the knee and replaced by a suitable prosthesis. Normal functions of the foot include balance and propulsion (push off his or her foot). Lack of balance and propulsion prevents ambulation. If a veteran can’t balance on his foot or push off from the foot in walking, he/she may be entitled to the benefit. Other factors that establish loss of use of a foot include: Extremely unfavorable* complete ankylosis of the knee Complete ankylosis of two major joints of an extremity Shortening of the lower extremity 3 1/2 inches or more Complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes. *Favorable ankylosis means the joint is frozen in a straight position; unfavorable ankylosis means the joint is frozen in a bent position.

The biggest challenge in winning your CUE claim in my opinion will be establishing that the result would have been manifestly different but for the error the adjudicator made. In other words, if the rater had considered all of the evidence you submitted (IMO & DBQ), would it have been guaranteed that your claim would have been granted? That's a tough call because if the rater gave more probative value to evidence in the record that was counter to your evidence (e.g., a negative C&P exam), he might arguably have made an error but not necessarily a clear and unmistakable error. CAVC gave some guidance in this regard: "Whether it is reasonable to conclude that the outcome would have been different is not the standard that must be met for a motion alleging CUE to succeed. The governing law requires that the error be 'undebatable' and that the commission of the alleged error must have 'manifestly changed the outcome' of the decision." King v. Shinseki, 26 Vet,App 433, 422 (2014). Best of luck with your case. CUEs are very difficult to win but not impossible.

SMC-T is extremely difficult to qualify for. The regulation 38 CFR 3.350(j) states "The special monthly compensation provided by 38 U.S.C. 1114(t) is payable to a veteran who, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under 38 U.S.C. 1114(r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential nstitutional care. Determination of this need is subject to the criteria of 38 CFR 3.352." Further, 38 CFR 3.352 states: "A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section. (ii) As a result of service-connected residuals of traumatic brain injury, the veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. (3) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional.Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof." In order to qualify for SMC-T, you may want to first try and get your 40% TBI rating increased to 100%. Then, seek a medical opinion from a doctor who opines that you meet the criteria stated above in the regulations. Best of luck to you!

The earlier effective date provisions of Blue Water Navy and Nehmer only apply to presumptive conditions.