Locomotion

[windy city]

Can anybody be able to explain to me what does the va mean when they use the phrase loss of use of lower extremities as to preclude locomotion without the aid of braces, crutches canes or wheelchair. Does this mean that you have to be using all the allpliances for the va to considered loss of locomotion.

[entropent]

"It has been my repeated experience that a limb which by injury or illness requires the use of a full time AFO (Ankle Foot Orthotic) is considered as loss of use."

this doesn't have to be the case. the foot has to be evaluated at 40 percent for complete paralysis of the peroneal nerve to warrant loss of use (for nerve injuries-orthopedic injuries are different). AFO braces can be prescribed for mild foot drop that does not meet this threshhold.

"I feel confident that a loss of use determination will be made and loss of use of 2 appendages is a 100% schedular rating. It will also entitle you to SMC, at least at an L rate, and adaptive vehicle grant, adaptive houseing grant, HISA gant and bunch of other stuff..."

respectfully, sixthscents, i do not think it is a good idea to be overly optimistic on the information provided by windy city at this time. wc only stated that he/she wore leg braces. that does not equate to loss of use, and windy city will have to prove his/her case according to law. windy city would be wise not get a false sense of security based on what happened in your individual case.

[sixthscents]

Im sorry entropent, but I have discussed this at length with Windy City in the past so I have a fairly good idea of what his condition is.

You are completely correct in you statement however, since you were unaware of this. Thank you for the tactful way you went about saying "shut up fool, you dont want him to get his hopes up"

However, CFR 38 does NOT require paralysis of the common peroneal or anterior tibialis nerve to determin loss of use. Loss of use is held to exist when the service member would be equally well served if they had an amputation and prosthetic in place. While it certainly helps to have an EMG showing nerve damage it is not necessary. Howevere, I cannot see how someone with bilateral footdrop could not have an atypical EMG.

Windy if I remember correctly you do have an EMG showing nerve damage....

I could be mistaken... its happened before but I think we discussed this months ago.. right?

Sorry but on re-read I have to add, I have handled about 20+ claims with loss of use - 3 ongoing right now. Its a specialty area for me. I wasn't just referring to my own experience, but my experience in handling several claims of a similar nature.

Anyway thank you for the correct and proper handleing of this issue entropent.

Edited October 1, 2007 by sixthscents

[sixthscents]

I decided to post the reference...

4.63 Loss of use of hand or foot.

Loss of use of a hand or a foot, for the purpose of special monthly compensation, 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 of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.

(a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of 2 major joints of an extremity, or shortening of the lower extremity of 3-1/2 inches (8.9 cms.) or more, will be taken as loss of use of the hand or foot involved.

(B) Complete paralysis of the external popliteal nerve (common peroneal) and consequent, footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot

PLEASE NOTE: (a) and (B) are guidelines for certain situations, however the definition in the main paragraph is equally impotant since it is the general guideline. An EMG is highly recommended for a loss of use claim, but not exactly necessary. It will make the claim much more "clear" for the rater. I advise all people who are seeking this rating to get an EMG performed. Entropent is certainly correct in that. It is a great help in proving the claim.

Edited October 1, 2007 by sixthscents

[entropent]

"CFR 38 does NOT require paralysis of the common peroneal or anterior tibialis nerve to determin loss of use.."

technically correct, but in general practice (you no doubt know this as you have experience prosecuting such claims) no rater or dro is going to give out smc on less than a 40 percent foot. it is certainly not an inferred issue until you get to 40 percent. you know windy city's case so you may know whether his feet have the ability to "push off" when walking, which will be the determining factor as to whether balance and propulsion would be equally well-served by an amputation with suitable prosthesis. i cannot think of a single case in which i granted loss of use where i did not have objective evidence in the form of an emg, and the results would have to confirm loss of motor function. in the case of nerve injury. ankylosis of the ankle is different.

[Ricky]

What if you have centeral nerve damage where the nerve damage is within the thalamus ? An EMG will not show any dysfunction as the problem is that the thalamus with in the brain is simply reading all signals incorrectly. Your opinion please - thank you.

[sixthscents]

"CFR 38 does NOT require paralysis of the common peroneal or anterior tibialis nerve to determin loss of use.."

technically correct, but in general practice (you no doubt know this as you have experience prosecuting such claims) no rater or dro is going to give out smc on less than a 40 percent foot. it is certainly not an inferred issue until you get to 40 percent. you know windy city's case so you may know whether his feet have the ability to "push off" when walking, which will be the determining factor as to whether balance and propulsion would be equally well-served by an amputation with suitable prosthesis. i cannot think of a single case in which i granted loss of use where i did not have objective evidence in the form of an emg, and the results would have to confirm loss of motor function. in the case of nerve injury. ankylosis of the ankle is different.

Well, I will admit that in EVERY single claim that I have helped where the applicant was awarded loss of use, an EMG did reveal abnormal nerve function - specifically with the anterior tiibialis, and/or common peroneal as evidenced by loss of ability to dorsal and/or plantar flex the foot. I do ALWAYS reccomend that a veteran get an EMG done prior to submission of the claim because a C&P will be done anyway... and it is objective evidence that there is clear and demonstratable injury.. it doesn't get much more objective. Sure a Doc can misread one, but I never have seen that happen.

However, there always is a for instance and the newest post points it out. If its in the thalamus and cannot be seen, then I would think that if the objective evidence showed a loss of ability to push off, with a LONG and ANNOTATED history of lost or diminished deep tendon reflex, well I think a good case could be made based upon just the deep tendon reflexes... but this would have to be over a long period since each doctor evaluates this subjectivly - unless they are completely absent and not just dimninished.

I spoke with Windy months ago before I got sick, and then I bailed out and kinda stopped online advocacy...looking over my notes, I think he has a GOOD case... but they are kinda sketchy since I was progressivly feeling worse and annotating less and less. I am feeling a bit better now, so I am trying to work back up, but my personal local advocacy is still on hold.

Something I do reccomend for advocates is to keep a daily journal, I just use notepad and date each entry. You can review older cases that pop back up. You would be suprised how easy it is to forget facts...

You make good points buddy... and you are right in that I do always say that an EMG is a GOOD thing to have. Hope to see you around for a long time. We... let me say I... value an ex-raters opinion because it gives us a tremendous insight into how the VA looks at a claim, and what evidence a rater would normally require etc. This is an incredible advantage because we can properly prepare a claim and get all the testing done if possible prior to submission. If you let me I'll be picking your brain now from time to time... however I will accept the answer you give even if its not what I want to hear.