Is my hypoxic respiratory failure( COPD),oxygen dependent; considered Loss Of Use.

[perffecto-jo]

I was wondering is Hypoxic respiratory failure (COPD) would be considered Loss of Use for SMC. Im on oxygen and always tired and fatigue. I just thought of this and just wanted the opinion of someone that is 100 times more smarter then me at these matters. I would think so because our short air supply and breathing from a machine, but I don't know. Can anyone help me understand.

 

 

[broncovet]

Great question.  Unfortunately, not exactly a simple answer.  In my review of 38 CFR 3.350, I did not see anything for "loss of use of lungs".  

However, this could cause aphonia (inability to speak), helplessness, (being bedridden) and needing aid and attendance.  I say, "go for it".  

https://www.law.cornell.edu/cfr/text/38/3.350

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Quote

 

6) Aphonia. Complete organic aphonia will be held to exist where there is a disability of the organs of speech which constantly precludes communication by speech.

(Authority: Pub. L. 88-22)'

 

or, if you need help, for aid and attendance:

(3) Need for aid and attendance. The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in § 3.352(a).

OR, if you are helpless or bedridden, or housebound.  

All of the above are SMC and you know better if eligible than I do.  

[GBArmy]

Perfectto-jo Welcome to Hadit. A good explanation is on SMC (k), which is loss or loss of use is here https://cck-law.com/blog/special-monthly-compensation-series-smck/  Broncovet offers a little optimism and there is some logic to his suggestion if you meet the criteria. Most certainly, it doesn't fit the "usual" disability claim because you didn't lose use of hands, feet, creative organ. But then, it doesn't say it has to be. As he says, why not go for it. Think of it as buying a raffle ticket, low risk, high return. Be creative! 

[FormerMember]

Let's be honest here. Aphonia is listed in §3.350(a)(6):

(6) Aphonia. Complete organic aphonia will be held to exist where there is a disability of the organs of speech which constantly precludes communication by speech.

This only happens when your vocal chords are enucleated (think throat cancer) such that you can only move your lips to communicate. Loss of, or loss of use of the lungs sort of means you die... I have succeeded in getting several folks rated for this (DC 6517) but only at 0%. There's a logical reason for it. It's secondary to Parkinson's (Paralysis Agitans under DC 8004).  The disease weakens your diaphragm muscles which control the amount of oxygen that passes through your vocal chords.  Thus your speech is  impaired and reduced-but it does not preclude communication by speech at, say a whisper or louder. 

A Vet can certainly prove, by a doctor's diagnosis, s/he is constantly precluded (forever) from speech and this will get you two things- a 100% rating under DC 6519 and SMC at the "K" rate-and no more for that particular scenario. Of course there are myriad ways you might get secondaries rated with IMOs. If you can only whisper, then you get 60%-but only if your disability is permanent. Expect VA to reexamine you a lot on this one unless you are maxed at 100% on COPD. Since speech is technically a different category from the lungs, it might be a neat trick to get the 60% to get to SMC S and avoid pyramiding. Now that would be an avenue to pursue.   

The problem and the reason none of us will ever get SMC L (loss of use) for aphonia alone is simple. It's not listed in the 4 conditions in §3.350(b). It's listed in §3.350(a). Quite simply, that means you will get a SMC "K" rating for it. I think the path would be to go after SMC L for A&A based on a 100% COPD and the inability to accomplish the ordinary activities of daily living under §3.352. I've gotten one Vet L for that combination and now we're working on getting BVA to give him the full and half-step bumps for all the other non-related SC conditions under §3.350(f)(3)(4). Houston refuses to.

P.S. I should add this. As an accredited representative, I am forbidden to file "frivolous claims". I could never file a claim demanding SMC L for loss of lungs wiithout censure by the OGC. However, an unrepresented (pro se) Vet can. Since you cannot win it with this logic, I'd defer to my discussion above. No insults intended to anyone on the site. Just pure reasoned, logical thinking. I'm sure someone else may have a better  way to skin a cat.

Edited March 3, 2021 by asknod (see edit history)