Loss of use

[30percentermovingup]

Hello, it's been a while since I posted and I looked for an answer everywhere and I could not find one.

I am 50% disabled for bilateral pes planus.

The question is when I received my bilateral AFOs. They knew they made my condition better. The question I have is on loss of use bilateral feet. In 2014 when I was issued the AFOs should I not have gotten loss of use. The way I understand it is if an orthotic is the same or makes it better it's considered loss of use. In that case. If I file can I file for back pay for loss of use.

I am not a writer, nor am I a speaker. I hope that you may understand this. 

Thank you so much for not closing down. By the way. This site has helped me greatly in the past.

 

 

[Mr cue]

Ok here is the rules on loss of use.

And a statement from hill&poton law firm on loss of use.

On 12/8/2022 at 7:35 PM, 30percentermovingup said:

loss of use, means amputation or no effective remaining function of an extremity or organ.

This is the statement they will use to try a denied.  An not address any evidence.

Hill &poton 

To make the VA definition easier to understand, let’s take a look at an example: picture a coin on the center of your kitchen table. Are you able to pick the coin right up with your fingers, or do you need to slide the coin to the edge of the table and push it until you can allow it to fall into your hand? If you’re unable to grasp the coin immediately, that is an indicator that your hands may not have a substantial remaining function.

 

When considering whether you may qualify for Loss of Use of Hands, some other questions to ask yourself are:

 

Do I have problems lifting pots and pans in the kitchen?

Do I frequently drop my eating utensils?

Is it difficult to wash myself in the shower due to lack of control of my hands?

If someone places something in my hand, can I feel it?

Am I able to type on a computer?

Can I pick up a pen and write a grocery list?

When I am driving, do I have full control over the steering wheel?

Am I able to button my own shirt?

Can I tie my shoes? 

Here are the cfr for loss of use smc benefits.

 

Responsibility for Determining LOU The responsibility for determining whether there is loss of use (LOU) of an extremity

 

• rests with the rating activity, and

 

• cannot be delegated to the examining physician.

 

c. Information to Request From an Examiner to Determine LOU When requesting an examination to determine LOU of an extremity, ask the examiner to furnish a

 

• detailed objective description of remaining function

 

• quantitative assessment of strength for each extremity involved, and

 

• description of any pain that affects use.

 

Do not request that the examiner

 

• determine LOU, or

 

• express an opinion as to whether there is, or is not, LOU of an extremity or extremities.

 

Note: If LOU cannot be determined upon review of an examination report, request an appropriate specialized examination.

 

References: For more information on

 

• considering functional loss due to pain in claims for SMC, see Tucker v. West, 11 Vet.App 369, 374 (1998), and

 

• requesting a specialist examination, see M21-1, Part III, Subpart iv, 3.A.6.

 

d. Determining the Extent of Examinations in Claims Involving SMC Under 38 U.S.C. 1114(l) Through (n)

 

Example: A prior examination clearly established LOU of both lower extremities at a level preventing natural knee action. Do not request a complete medical examination if the only issue in question is the extent of involvement of one or both of the upper extremities. Instead, request an examination with a notation that the examination be restricted to the degree of functional impairment of the upper extremities.

 

 

 

 

 

[jamescripps2]

First off, Being issued AFOs or wearing AFOs does not constitute loss of use. Loss of use of feet can only be determined by a VA rater. Refer to 38 CFR 3.350 to see what constitutes loss of use of feet. Most vets are awarded loss of use of feet as a result of a diagnosis of permanent loss of the common peroneal nerve.

Back pay will go back to the date that you can show that you actually do have loss of use compliant to the regulations at 38 CFR 3.350, or the date of the filing of the claim, whichever is later.

 

If you plan to pursue the loss of use claim, I suggest that you file an intent to file ASAP. The date of the intent to file will preserve the effective date if you actually support and file your claim within a year.

 

It would be a long shot, but If you actually do win the claim for loss of use of two feet. You can then file an appeal for an earlier effective date (EED) back to 2014. Most probably you would need a lawyer for the EED appeal.

 

I suggest that you go to the hadit forums and read the Special Monthly Compensation threads starting with SMC "L" and continue through SMC "M", SMC "O"  and then "R-1" "R-2" There is a lot of good information there that might help you.

 

38 CFR 3.350 Special Monthly Compensation Ratings

(a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved.

(b) and Complete paralysis of the external popliteal nerve (common peroneal) 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.

[john999]

James ...so when we say loss of use we mean is if were an amputation?

[30percentermovingup]

6 minutes ago, john999 said:

James ...so when we say loss of use we mean is if were an amputation?

If it were as if you had an amputation. Amputation is not necessary for loss of use though.
What is considered loss or loss of use? Loss, or loss of use, means amputation or no effective remaining function of an extremity or organ. VA considers the following disabilities for Special Monthly Compensation (SMC): • Loss, or loss of use, of a hand or foot • Immobility of a joint • Paralysis • Loss of sight of an eye (only seeing light) • Loss, or loss of use, of a reproductive organ • Complete loss, or loss of use, of both buttocks • Deafness of both ears (no air and bone conduction) • Inability to communicate by speech (complete organic aphonia) • Loss of a percentage of tissue from a single breast, or both breasts, from mastectomy or radiation treatment

[jamescripps2]

30percent, good post, you are getting smarter already! The more you read, the smarter you will become. Use what you have learned to give some direction in filing your claim.

 

[30percentermovingup]

5 hours ago, Mr cue said:

Mr Cue, I had found that about a year ago or something related to that effect. And that's exactly what I was willing to see again. I have all that in my records already. I even have bilateral foot drop in my records. Which I consider as a 30-year experience nurse would be loss of use alone. 

Thank you so much for your help

 

5 hours ago, Mr cue said: