Searching through VA data, it might appall you to discover just how many of you are not totally disabled who should be. I remember seeing some of the early breakdowns of ratings percentages by actual numbers rather than broad statistics back in 2008. I’d just reached 100% P&T and was stupified that VA had caved in so readily. I shouldn’t have been. Having studied it for a few years, I knew what I needed to get there. But how many of you don’t? My most recent battle again impressed on me that Boy Scout mantra of ‘be prepared’-regardless.
Back in the day, I was a firm believer in hand grenades. Just like an American Express Credit card, I never went anywhere without a couple in my cargo pockets- even the loo. Up north in the land of the elephants that rhymed with mouse, we had a ready supply of those Swedish grenades that must have been designed for the less muscular among the Swedes who only got out for INACDUTRA warfare one weekend a month. You felt like an NFL quarterback and could huck one the length of a football field with little or no effort. Well, almost. An M 26 “lemon” style grenade was slightly less in weight than the old pineapple version of WW II. The reason I know that is the VC repurposed the pineapples with a new prussic acid fuse and there were tons of them you could measure against ours. The Swedish ones were noticeably lighter. The rebuilt pineapples weren’t exactly a big hit with the VC because about one out of five went off instantly when you pulled the bamboo ‘cork’ out of the top. Some went off within several seconds. One out of ten was a complete dud. Hand grenades taught me the value of being prepared for anything. It’s carried over into my VA law games. You don’t have to be an expert legal marksman to hit anything.
SMC T is a narrow type of SMC rating. If you can qualify to SMC L for aid and attendance and you have a shit ton of ratings for TBI residuals and PTSD, you qualify for consideration for the leapfrog directly up to SMC T from L. For most of us non-TBI folks, it requires an A&A rating plus a second qualifier like loss of use of your upper or lower extremities or blindness. A certain VSO pushed for this SMC T rating back in 2010 for the huge numbers of Vets who got clobbered by IEDs. I get that. What I never got was that the VA created two classes of Veterans- those who served before 9/11/2001 and those who came after. Trust me when I say we had IEDs in Vietnam. We just called them boobytraps…or mines. Six of one and half a dozen of another. They still can make your neurological existence utter hell for the rest of your life.
One of my clients-Stuart, a ‘transportation expert’, rode shotgun on convoys from Long Binh up to Quan Loi. He was in a 18-wheeler cab when they hit a command-detonated MK 82 500 pounder buried in Rte. 1 one morning. It blew their tractor upside down 30 feet sideways off the road and cold-cocked both him and the driver. Stu was carrying a Pig and six boxes of 7.62. He said it felt like being in a washing machine with a 351 Cleveland until he lost consciousness. Messed him up it did. Yesssssssssssss. He says he’s never hit on all eight cylinders ever since. I believe him. One afternoon, we had a smart fart F 100 driver who was not cleared in hot pickle off a pair of MK 82 500-lb. Snake eyes about 1/4 mile from us. It dang near ripped our wings off and left us deaf as a post for several days. That’s the closest I ever want to come to a TBI.
So when Denise and Carl (not their real names) came to me and asked for help, I couldn’t turn this down. Carl started out Marine Life as an admin weenie at first. Then they ‘promoted’ him to Graves and Registration duty when they needed some new ones. That should have made the hair stand up on the back of his neck. For the uninitiated, G&R is the distasteful job of picking up all the little pieces of people after a fire fight. If you’re really unlucky, they make you map it all out and try to figure out what belongs to who. Boots with feet still in them are very frequent. Parts and pieces of human bodies tend to fly all over the place judging from my own personal experience. Generally, they can blend into dirt and be difficult to see unless they’re either bloody, flesh colored or have a piece of uniform still attached. It must be a traumatic MOS judging by turnover and what it does to the human psyche. Supersize it with a side of TBI from an IED and you have a recipe for permanent mental Hell. Meet Carl.
I think the enduring trauma is when these troops return home. Wives or loved ones are taken aback at the dramatic, permanent change of persona. Granted, being in a theatre of war changes you. Combat definitely more so. But comorbidity of TBI and PTSD is almost more than any one soldier was ever designed to bear. It’s a classic example of what no deposit, no return military philosophy becomes in practice. Carl is a survivor of both and a walking miracle. Survivor inasmuch as each day is a Groundhog Day repeat of pain, headaches and mental turmoil. Check out his noggin. He probably would not have made it this far without the support of his wife and children after the Marines escorted him to the front gate. Once you’re damaged, the military can’t 86 you fast enough. I know. I did that perp walk in February 1973 -eight months after I got back to the world. It’s almost as if they fear you’ll contaminate any you come in contact with- like Corona. Carl probably wasn’t a walking, talking inducement to re-up so having him around cast a damper on the oooh-rah morale program. After all he’d gone through, anger management wasn’t his strong suite anymore. It still isn’t.
VA is not overly generous when it comes to handing out SMC just in case any of you hadn’t picked up on that yet. The higher the award, the more static and recalcitrance they exhibit. You’ll hear every excuse under the sun as to why you missed SMC T by thaaaaaat much. You’ll hear tell that SMC T is reserved for those far more injured than you; that your injuries don’t quite qualify. They’ll aver the regulations are explicit and you need to be more than 100% for bent brain and have a shit ton more TBI than you currently do have. That’s bullshit. Those statistics I mentioned above reveal there are fewer than 3,000 or so rated for SMC T. That’s about the same number as SMC R 2 which is the same dollar value SMC ( $9,850 per month). There’s a reason for that. Think mushrooms and a dark, warm basement full of ignorance manure. I like to point out that since they always get SMC wrong or completely forget about it being applicable, that they should trust me. That one hasn’t worked much yet in spite of my unblemished SMC record.
To give you an idea of what you need to qualify for T, take a look at §3.350(j) and then review §3.352(b):
(j) Special aid and attendance benefit for residuals of traumatic brain injury (38 U.S.C. 1114(t)). The special monthly compensation provided by 38 U.S.C. 1114(t) is payable to a veteran who, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under 38 U.S.C. 1114(r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. Determination of this need is subject to the criteria of § 3.352.
§3.352(b)(2) gets into the nitty gritty small print of what VA seems to think is really required to attain SMC T. At any rate, it’s my considered opinion (and probably only mine) that you should always be prepared to supply credentials showing you’re certified for medical supervision for Physical Therapy (PT) in home by XYZ PT Co. with Nurse Ratched supervising, swimming at local YMCA times one day/week etc. 38 USC §1114(t) enunciates it clearly but 38 CFR §3.352(b)(2) simply muddies the waters.
(2) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met:
(i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.
(ii) As a result of service-connected residuals of traumatic brain injury, the veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.
(3) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran‘s home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof.
(4) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(3) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice.
(5) A person performing personal health-care services who is a relative or other member of the veteran‘s household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional.
(6) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran‘s need is clearly established and the amount of services required by the veteran on a daily basis is substantial.
(c) Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.
VA makes it sound as if all you need is the a&a of another, and in its absence, you’d need to be institutionalized. Well, not exactly as they say down at Dollar-a-Day Rentacar. If that were the case, there’d be a shit ton more Vets on SMC T. VA attempts to allege you need the exact same requirements for a higher level of care required to qualify for SMC R2. In shorthand, that means the wife or parent is going to have to become proficient in a wide array of medical techniques that might even entail removing or replacing indwelling catheters or administering injections. Or, it could be nothing more than learning how to accomplish rudimentary exercises in physical therapy or treating bedsores. At any rate, it will require a lifetime of medical treatment in the home and supervision as described by §3.352(b)(4). VA tossed in that killer qualifier that these regulations be strictly construed such that you generally almost qualify but most often not quite. That clearly explains why there are less than 3,000 who win SMC T or R2. What’s worse, they never tell you what you lack to get the T. That right there is a mega violation of 38 CFR §3.103(f)(5)(6); 38 USC §5104(a)(5).
Denise came to me back in late September. They’d already beat their fists bloody trying to win this and couldn’t get any explanation on how to play SMC poker with VA. All they got was “you’re not that damaged, dude.” She fought them from 2015-2018 just to win the TBI and get a paltry 70% for the bent brain syndrome. In spite of that, VA was adamant about no SMC- not even a&a. Considering Carl almost went to jail for threatening to beat the shit out of a cop, you’d figure they might grant that much. Denise fought them to a draw and won the a&a to begin the fight in earnest. I admire her for even getting that far. SMC T, however, would remain denied until last Friday morning.
Now, I’ll let you in on a proprietary secret. During the HLR informal conference, I could catch the DRO’s drift that Carl wasn’t going to be SMC T material. She was telegraphing that with all the pleasantries. Surprise, surprise surprise. When they start saying they’ll re-review the claims file and “perhaps” be able to make a favorable decision, you can almost rest assured they already typed it up and are waiting ready to hit SEND. Rest assured also that you’ll be reading the denial in 28 minutes. I had already obtained a dynamite IMO from my folks at Mednick so I was acting a bit ambivalent about the whole thing. I told her point blank I fully well expected to get the “we wish that we could award you the T but….” Dear John letter and that the client was completely prepared for that. But I was also equally frank and said we’d just received the IMO in hand from a sme (subject matter expert) board-certified neurodoc that said he would never be able to exist outside a care facility solo without a higher level of care-so fire away as we were all prepared to take this to the BVA. Why, the HLR is just a mere formality I entertain with you VA folks to check all the boxes on the way to appeal. That punji pit always gets them. The reason it works like a charm is VA employees are insecure. If you’re nonchalant in the face of almost certain, 99.999% denial, they wonder what you know that they missed. It works like a charm. Remember, they’re used to dealing with VSOs. We won’t go into that today. Anyway, there was a nice long delayed pregnant pause and then the “Excuse me. Did you say you have a private IMO? From whom?”
I read her the punchline verbatim from the neurodoc and explained that VLJs up at the Puzzle Palace in DC generally ascribe more intelligence to Board-Certified 65-yr. old neurologists than FNG “family practice” ARNPs with two years of QTC under their belts. Another pregnant pause before she said she’d certainly give this the de novo hairy eyeball and get back to me. Well, I was right. It was about 28 minutes but it had metamorphosed into a grant. This is the second time the mere threat of a bulletproof IMO has induced them to grant what I wanted.
Now, in all fairness, I wouldn’t suggest bullshirting a VA DRO and telling them you have an IMO when you don’t. That’s probably against the law in 48 states even if VA bullshoots us day in and day out. Besides, I’m technically a VA “employee” in a tortured interpretation of the definition and I reckon I could lose my license. But that’s not to say I can’t wave it under their noses and let them know I’m strapping on the shooting irons and preparing for a legal gunfight. I sure wasn’t bullskirting her on that point. Who ever thought whistling whilst passing the graveyard would become a litigating tool?
Denise and her kids still have a lifetime of challenges before them. $10 K a month will not buy tranquility but it will buy some measure of relief for treating Carl and getting him good professional help. I sure hope they don’t continue to use the VA VAMC for medical because that’s probably half his problem right now. I wouldn’t take my dog to a VA hospital. One look at my belly and you’d agree. That can only be VHA’s handiwork. Considering Denise is now certified for PY and other home care, I’ve advised her to go for the VHA PCAFC caregiver stipend of $2100 a month to help make ends meet.
Happy Juneteenth to you all. There’s no business like Vet business. I might not go to Heaven based on my SEA transgressions but I’m hoping to get a bye if I continue to pull off a few more of these de novo do overs. Thank you Carl- and especially Denise- for letting me be your sword bearer. It was an honor to be chosen to do this one. What’s best of all is getting it done locally without having to appeal it for 3 years.