Christmas is a great time to win a claim of this magnitude if you were wondering where you were gonna  scare up some shopping money… with a wife and three rug rangers. Just so you know- with the new economic plan passed by Congress (Brandonomics), your George Washington coupon is now worth about 87¢ and shrinking fast. Meet Allen- my newest SMC T winner. I’m not prognosticating but I’d reckon this win had not been factored in to his 401 K or Roth IRA plan in his lifetime. That’ why I feel so honored to be able to win these types of claims which many feel are nigh on impossible. 

SMC T is a relatively recent invention by Congress and fortunately separate from their economic plans thank God. So many Vets were driving over mines on the roads of Iraquistan in the last 20 years that the number of truly permanent scrambled egg brain Vets are beginning to surpass even the huge numbers of Bent Brain Syndrome (PTSD) Vets with Obstructive Sleep Apnea. The only difference is they never win the Big Banana.

There’s a shit ton of my fellow Vietnam Vets who almost ended up on the wall due to what VA would characterize as Acoustical trauma rather than concussion trauma. In 1969, doctors called it organic brain injury. Back then, VA had a home to bury these brain claims (10% jokes) hiding in §4.132 (now §4.130) under DC 9304 Chronic brain syndrome associated with brain trauma. That’s where the tinnitus  claims went to die pre-1976-(DC 6260=8045=9304 combined for 10%). VA gussied it up for the Wounded Warriors and began referring to 8045 as TBI. Six of one. Half a dozen of another. Getting the new SMC T was (and is) like winning the Powerball and with similar odds as the old organic brain game. Most folks don’t realize how this works.

There are 18.9 million Vets. 5 million are rated from 0% for hearing, scars or hemorrhoids all the way up to TDIU or 100% schedular for really big issues. In 2018, there were 119,000 ± at 100% schedular and about 115,000 at IU. There were about 38,000 in the SMC L to M cohort  for blindness, loss of, or loss of use or aid and attendance-many with a K or a bump under §3.350(f)(3)(4) moving them into SMC P.  But there were only about 8,000 on SMC O to R1. As for R2 and T, think less than 4,000 lotto winners combined.

TBI is ugly. It gives you hallucinations and waaaay more. Headaches, Meniere’s disease, photosensitivity, bent brain off the map, road rage, severe anger syndrome and extremely poor judgement skills are the legacy of this injury. The fact is your loving family probably doesn’t cotton to taking you out unless you’re on a leash with a choke collar or very heavily medicated. And none of it is your fault. You probably don’t even know you’re being socially awkward when you clock that cop with a sucker punch after he pulled you over for doing 90 in a school zone. I’m lucky. All I have is Tourette’s syndrome and a proprioception deficit. I flunk the Romberg test every time. TBI does that to you.

In these instances, your spouse needs far more Baksheesh to hire Visiting Angels™ (armed with tasers) to provide you aid and attendance. Entitlement to T has a nasty Catch 22 hook. You have to be mega messed up to qualify. In fact, you have to be nigh on to Kingsford™ Charcoal mentally to qualify. The dividing line is whether you would have to be institutionalized in the absence of your significant other (or wife). Even worse, it can’t be due to your bent brain from dodging B 40s. And guess who gets to make that determination?

So, in the most simplest terms, you are a financial black hole and require the highest rate of VA compensation payable. In this case, a husband and his spouse, not even counting any children, are entitled to $10,905.63 per month now with the latest 2023 COLA bump. VA, however, isn’t all het up about publicizing this too loudly nor are they inclined to grant it. When, and if, you do learn the secret handshake and the password as I have, it’s still a grueling path to the BVA for a win. You need a SMC Sherpa to navigate this or you’ll just end up in the ditch. I have yet to meet a SMC T Vet who won it by himself.

This is why most of my clients who are in this group of medical misfits are broke and need it the most. And, if you are adroit as a litigator, you’ll get them advanced on the docket RFN due to their being in financial hardship or terminally ill. This reduces their time spent sitting on the Arlo Guthrie Memorial Group W bench. Not to put too fine a point on it but on a scale of difficulty, winning SMC T is right below successfully mating Unicorns for fun and profit at your world-famous Cadillac Ranch.

Allen and his supportive wife (and children) have had a full time job taking care of him. I can’t even imagine all their horror stories over the years of their fight up the SMC ladder to get here today.  I see his plight replicated over and over in the system every day. Vets come to me with a SMC S and VA is adamant they do not qualify for more. It’s a semantic distinction. VA is like “Dude, you’re getting SMC housebound. You don’t qualify for more or we’d give it to you”. The suffix to that sentence should be “but we don’t know how to do SMC”. Ignorance is bliss. In the VA adjudications system, it’s a denial.

To begin with, Allen had a SMC L for A&A and a second 100%, separate and distinct due to his heart condition. Bingo. At the very least, he was due an instant bump up from the L to M under §3.350(f)(4). But nooooooooo. After numerous arguments, they reluctantly gave him a L 1/2. Wrong. That was nothing more than a distraction in the genesis of this appeals argument. When you’re playing SMC poker, VA is required to infer what you are really entitled to-not how little they can get away with giving you. They even have a fancy SMC Ratings Calculator for this. The problem is elementary. Garbage in= garbage out. The M 21 is remarkably remiss  as well or somebody hasn’t written that chapter yet. SMC is one of those rare times when what you don’t know can hurt you.

The modern miracle of Willy Pete

The denial technique is vintage VA. They get to determine if you qualify. But their doctors or ARPN/PAs are programmed to say it’s all too speculative as to whether your bent brain or the TBI is the cause for your need for a higher level of care for a&a. I guess I don’t need to tell you that 99% of Vets’ claims for T go down the tubes. None of them VA Examiners ever say “Gee. Johnny Vet suffers both of these problems (TBI + PTSD). Since we’re brain-challenged, let’s give him the benefit of the doubt and say it’s TBI. What the hey? No skin off our asses, right?” No sir. If they did, it might endanger their 30 pieces of silver for not kowtowing to the VA’s denial plan. So what’s a Vet to do? Well, to begin with, I’d suggest you send me an email.

My son, who is an attorney, calls my style of legal brief “thin-slicing”. Could be it is. I don’t have any legal training to say one way or another. In the BVA direct appeals lane, which is the fastest, we’re not allowed to submit evidence to prove they earned it. I recite the Vet’s history to save time. It’s like a mini-RBA or Record Before the Agency to give them a roadmap.   I don’t “tell” VA what they screwed up on so much as I tell them what they were required to do by law and federal precedence. I use the chronological receipt dates in VBMS to help those poor VA souls paralyzed from the neck up find the medical evidence they insist doesn’t exist to support  entitlement.  Then I lay out what the correct procedure and outcome should be. Then I beg like hell for mercy. This recipe is the ages-old axiom that honey attracts bees-not vinegar. Too bad it doesn’t work at your local Puzzle Palace. If it did, I’d be out of a job.

Face it. Nobody likes to be talked down to-especially VLJs and their staff attorneys. And, sadly, not all of  VA’s finest at the local level have a functional hard drive upstairs. You cut the Gordian Knot by giving them the evidence they cannot ‘see’ that supports your case. When they find it, they shout out Eureka! as if they’re Mensa material and directly descended from Sherlock Holmes. Let them gloat. Hush, child. Bite your tongue. It’s  reward enough to read the BVA decision and see they plagiarized all your cites from your legal landscape section as the legal predicate for their grant.

So, without further ado, let’s unwrap Allen’s brand new SMC T and see if anything here can help another Veteran similarly situated.

Redact SMC M & T Denial

Redact Code sheet 8.3.23 L 1.5

Redact SMC T filing

Redact SMC T 12.14.2023

If you would, take a gander at his Code Sheet above. The winning clue is right there in front of you. Note that DC 8045 (TBI) is in front of DC 9411 (PTSD) and note they are hyphenated. This is important.  We all know VA conjoins these two disease processes into one and says they are hopelessly entangled to the point that them poor doctors are totally conflusticated and unable to see where one ends and the other begins. This is VA shorthand for ‘you’re screwed’. You had a 70 for TBI and a 70 for PTSD and now all of a sudden after fling for T you have a 70 for them combined-or maybe they upped it to 100%. Take a look at the favorable findings at the end of the SMC M&T Rating Decision denial above. See the  “You need a&a”?  VA just admitted you’re charcoal but it’s PTSD charcoal- not TBI charcoal.

They act like they’re doing you a favor and throw in the SMC L for a&a but now the speculative clause comes into play. Sorry Charlie. No SMC T because we can’t untangle it. Case closed. This is the wrong legal standard of review but Vets don’t know that. Why should they? They’re not law dogs. All they know is they need a lot more financial help but they’re never going to get it because VA’s hired guns have foreclosed that possibility. That’s where I come in. I’ve learned how to play SMC poker. I’m not going to explain it here in detail because that will just provoke VA to “fix” the loophole and make my job more difficult (again).

My success lies mostly in digging out all the exams and medical evidence which proves your case. I frequently see the Raters say there is no evidence to support your claim but that’s because they gloss over anything over a year or two old. Or worse, they’ll glom on to an antique a&a assessment from a 2014 VAF 21-2680 form as proof you’re good to go. As for VSOs helping you out, get serious. They have a 200+-Vet case load and no time for doing a dumpster dive into VBMS to unearth the proof.

In January, I’m beginning classes on SMC to train ten VA representatives on bulletproof techniques to outfox VA raters and win these claims. My workload is plum off the map. By training others, I can pawn all my backlog onto them. Maybe then my horse Cooper and me can become friends again and go riding. Right now he’s so pissed he won’t even talk to me.

Congratulations are in order here to Allen for managing not to go completely bugf**ky before he found me and won. TBI is a nasty reality that VA is currently sweeping under the rug using bogus law and illegitimate techniques. Thus, SMC T falls into VA’s “Thursday Rule”. What? You weren’t born on a Thursday? Well, shucks. There you go. That explains why you lost. Should you actually answer in the positive, the next rejoinder would be “AM or PM?” Heads VA wins. Tails you lose. Unravelling their bullshit and getting it sorted is difficult because nobody knows how. I aim to fix that directly.

Everybody’s got something to hide except for me and my monkey.

Merry Christmas to you all from Cupcake and me. I’d throw in a “thank you for your service” but I don’t want anyone to get nauseous and throw up.

P.S. Here’s Ed’s LRRP Christmas humor to brighten your day.

Santa’s wish list: