In the last post about Avery’s benefits, I referenced an increased rating. I advised Avery to also ask for a determination for loss of use of his lower extremity(ies) due to his COPD. What does that mean and why is that important?
When a veteran has a loss of, or loss of use of, at least one extremity, the veteran may be entitled to additional benefits. Loss of use does not mean a veteran has lost the limb. Loss of use (LOU) means there is “No Effective Remaining Function” (NERF).
How is NERF determined? The basic regulation a veteran could research is Title 38 § 4.63. That regulation is clear and simple:
“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 31/2inches (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.”
Ok. Maybe it is not so simple and clear. I will summarize. If the veteran cannot grasp AND manipulate with their hand, they have NERF, therefore they have LOU. If the veteran cannot balance AND propel with their foot, they have NERF, therefore they have LOU.
Avery’s claim was a little more complicated. He still had both his legs. He could stand but he couldn’t walk except to transfer from his wheelchair to another chair. I employed a couple other regulations to better describe Avery’s condition. Title 38 CFR § 4.40 gives the definition of functional loss:
“Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.”
Avery clearly had damage to a system. He was service-connected for a respiratory condition. Avery also did not have normal strength, speed, or endurance. Because of his COPD, Avery was greatly weakened. Avery’s doctor would clearly and easily describe Avery with functional loss of both lower extremities.
Now what benefit did Avery earn? He qualified for the Automobile Grant. The Automobile Grant is exactly as it sounds. It is a grant provided for the purchase of an automobile. In 2005 when I met Avery, the grant was $11,000.00. This money goes to the seller. The veteran could buy a
new or used, car, truck, or other vehicle with this grant. There is one person I know of who helped a veteran use their grant for the purchase of a lawn tractor. I don’t know if that will ever happen again. (Maybe I should put a * next to that story as a disclaimer indicating that a lawn tractor is not typical.)
Avery thought that news was even better than the HISA grant. He could now buy a minivan so he could get out of his house occasionally. I could see Avery’s smile grow. I could also see a tears forming in his eyes. I really don’t like making old guys cry but I did find some reward in his tears.
This still more about the Automobile Grant everyone needs to know. I’ll continue in Part 2. For now, here is the link to Title 38 CFR Part 4: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=f63ce978448cbefccddabdaa8340cf1c&rgn=div8&view=text&node=38:126.96.36.199.188.8.131.52&idno=38