Board applies wrong standard for SMC based on loss of use

Board applies wrong standard for SMC based on loss of use

History of the case

The Veteran is service connected for pes planus. He filed a claim seeking special monthly compensation (SMC) for the loss of use of both feet in 2014.  As stated in his record, the Veteran was unable to stand for more than a few minutes or walk more than a few yards.  The Board denied the Veteran entitlement to SMC in March 2015.  The Veteran then appealed this denial to the Court.  The parties entered into a joint motion for remand as the Board provided inadequate reasons or bases for its denial. Specifically, both parties agreed that the Board’s conclusion was at odds with the evidence of record.

Board denies SMC based on loss of use of feet

In the decision on appeal, the Board denied entitlement to SMC for the loss of use of both feet.  The Board found that the Veteran did not have “no  effective remaining function”, as would be necessary to grant entitlement to SMC based on the loss of use of the feet.  CCK appealed this decision to the Court.

Court agrees with CCK that Board used wrong standard

The Court determined that the Board’s analysis was based on a misunderstanding of VA regulations.  It became evident that the Board used the wrong standard in order to establish entitlement to SMC.  Specifically it required the Veteran to have no effective function remaining in his feet.  Rather, the correct standard is whether the Veteran had no effective function other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance.

Additionally, the Board failed to conduct the required comparison between the Veteran’s functioning and that which he might expect with amputation and prosthetics.  Instead, the Board essentially required the Veteran to show that his feet should be amputated.  Amputation is not the standard for SMC, and therefore the Board was in error.  In addition, the Board simply offered its  own medical conclusion that the Veteran was able to use his feet in a close to normal manner.  This conclusion was made in spite of evidence to the contrary in the record.  The Court therefore set aside the Board’s decision denying SMC based on loss of use.  They appropriately  remanded the case for readjudication.

To read a copy of the Court’s decision, click here. 

Category: Court Wins