Big shout out for Amy Odom on her absolutely stellar Laska victory back in…wait, September 4, 2024? But that occurred before my Johnny Vet was denied. We got the Dear John letter on October 5^th if you go by the U.S. Postal Service. But to be honest, I saw it as it populated in VBMS in real time on September 25. Well boy howdy you gotta know good legal news travels at .95 light speed in our NOVA™ legal universe. In fact, I watched the Oral argument live several months before on CAVC TV. The village idiot could see which way the wind was blowing.

So here’s the official Laska scenario for the FNGs, Mr. Williams, survived by his spouse Mrs. Laska, was arguing for SMC T-rightfully, I might add- but kept getting denied because all of a sudden the Great White VA Father in Washington changed the rules. Let’s begin with what Congress passed for severely TBI’d Vets. Written in really small print was that it only covered post-9/11 Veterans. Right off you can see the racism/ageism begin. In our day, they called it organic brain injury. Six of one, half a dozen of another. What about us WW II, Korean and Vietnam “War” Veterans? And all the interim brush fires in Africa, Grenada and Beirut etc.? Nobody ever explained that part.

38 USC §1114(t) states:

SMC under 38 U.S.C. § lll4(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 a TBI, 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. 38 U.S.C. §1114(t). Determination of this need is subject to the criteria of 38 C.F.R. §3.352. 38 U.S.C. §1114(t); 38 C.F.R. §3.350(j).

But when the Council of all the Great White Fathers convened seven years later with the braindead “Big 6” Tribes to invent the AMA, something had changed. VA and their VSO cronies were appalled at the huge numbers of TBI folks who were qualifying left and right for SMC T and VHA’s PCAFC. SMC T, as well as its cousin R2, pays today- in actual George Washington Coupons- $11,491.26 per month (married without trans or cisgender dependents).

The new AMA regulation, however, was subtly altered by someone to now read, in 38 CFR §3.350(b)(2)(ii), that even though this specific regulation was set up only for those poor Vets who would never qualify for SMC at the R 1 or R 2 rate, in order to qualify for SMC T, Johnny Vet actually had to meet all the same requirements of R 2 to get his T. This is VA’s perennial version of “Heads I win. Tails you lose.” They have a lot of these deadend regulations.

That solved the problem for a while until Mr. Williams came along and pitched a bitch. You don’t even need to graduate summa cum laude from Hooked on Phonics to get this one sorted. Amy was all over this like white on rice. And so Laska became precedence on September 4, 2024. Twenty-one days later, on September 25, Johnny Vet’s fate was suddenly sealed for the next two years and a month based on pre-Laska. Simple fix though, right? Laska is now accepted precedence, right? File. Sit back, simmer for 10 months and bingo- you get your BVA win and everyone lives happily ever after. At least on paper view (pun intended).

Even though I painfully fleshed out what went wrong below at Johnny Vet’s local Puzzle Palace in my brief eight short days later- now 29 days post-Laska, I might as well have been pissing into the wind.

BVA 10182 filed 10.03.2024_Redacted

The VLJ -Honorable John J. Crowley- obstinately chose to teach me a lesson. Although he didn’t actually say it, he denied entitlement to SMC T even though I had an iron-clad IMO and the regulation I was quoting now could only be read correctly 21 days AFTER Laska was decided. The next to last sentence at the bottom of page 7 of 7 pages spilled the beans. Even if he qualified in every respect for SMC T, Judge Crowley insisted Johnny still had to comply with R 2- “there is no evidence that his caregiver or wife is providing skilled medical care”.

BVA Denial T= Laska to CAVC_Redacted

This boils down to a “but for” argument. But for the Secretary incorrectly writing his regulation and faithfully following Congress’ statute on February 19, 2019, Mr. Williams would have been granted SMC T at his local Fort Fumble. But for an obstinate judge with a wild hair up his ass,  my Vet wouldn’t have been in this predicament either… for two more years plus past when he should have been granted his T. That’s against the law in 49 states (everything’s legal in Missouri) and everyone involved knew it. But nobody spoke up for five years in Mr. Williams’ case. And nobody spoke up for over two years in my Johnny Vet’s case either. Someone famous once said “Stupid is as stupid does.”

This is telling about a Judge who is required to be independent and apply the law to the facts. It speaks to how he feels about Veterans in general and my Veteran specifically. But that was not the end of the matter.

My good friend Wesley McCauley (no relation to McCauley Caulkin) took this up to the CAVC for me. Only at the Rule 33  conference did the VA Poohbahs finally come to their senses, piss on the fire and call in the dogs. The JMPR instructed the BVA to utilize the correct reading as enunciated in 38 CFR §§3.352(a);3.350(j)(2024) and readjudicate it à la Laska. And guess who Mr. BVA Vice-Chairman assigned it back to? Yep. Judge Crowley. That ol’ boy had to eat crow on his earlier denial and admit he screwed up.

BVA SMC T 10.26.2026_Redacted

But the Judge just couldn’t let it go that easily without putting in one last dig. I get that. Nobody wants to be called out for being a dickhead. But once you get caught, you try to rationalize and legitimize some small shred of your crime. Sadly, here, the Judge willfully chose to employ an ultra vires regulation he well knew had been overruled just to make his point-i.e., ‘you can’t cite a legal precedent before I recognize it becomes a precedent’. I reckon he didn’t anticipate anyone would bother to look it up. But I did. Laska had been in effect for twenty-one days when the RO denied him. It had been in effect for one full year and eleven days by the time Judge Crowley got around to denying him and forcing him to go up to the CAVC in a never-ending search for justice. Think about it. You folks know the rules because they’re written down for all to see. In this Judge’s Bizarro Legal World, you’re somehow denied until it gets published in Westlaw. You die during the delay. Finally, four years later, everyone looks at each other and agrees 3.352(b)(2)(ii) was wrong wrong wrong. Finally.

So don’t blather on to me about the VA Judicial System being some benign nonadversarial Veteran friendly, ex parte venue in which we are afforded much sympathy like the family dog and a liberal construction of our misguided intentions. What happened here conservatively cost the American taxpayers 1.82 % of Judge Crowley’s annual salary.  It cost taxpayers 1.82% of all his staff attorney(s) annual salary(ies).  The Court Clerk(s) at the CAVC cost taxpayers for a few days prepping for the Rule 33 conference. It cost taxpayers a few shekels more for the other CAVC file clerks who put hands on this file and docketed it. USPS?  And lastly, it cost over $10,000.00 in Equal Access to Justice Act (EAJA) dollars which had to be paid to Wes and the attorneys who picked up  Johnny Vet’s Battle Flag and repped him at the Rule 33 conference. Senator Goldwater once said “a million here and a million there and pretty soon you’re talking some serious money.”

Just this one example  illustrates what adds up to shit tons of your and my tax dollars just so the Judge Crowleys of the BVA World could pretend to take umbrage with some upstart, dumbshit VA Agent with no legal training. I guess the only justice achieved here was that he had to don CAVC-issue sack cloth, anoint his forehead with the ashes of Medal of Honor winners and grant the T. Too bad they don’t have quality control at the BVA. Think of all the money they could save. But I reckon the idea of saving money is full of holes when you hear the VA brag about their 98% record on doing claims correctly. If VA’s error rate was 2%, the CAVC would plumb run out of cases or controversies to decide in the first three months of every year. Just think. The Judges would probably all have 12 handicaps, too.

In closing, I want you to realize this goes on day-in and day-out at the VA. 182 days a year VA gets to make mistakes that you and I pay for. But in reality, it’s the Veteran who pays the most. She or he never gets to go to work and support their family leaving the other spouse to fend for them both. Extreme poverty is a given. Suicide is frequent. So is divorce. SMC T is a life raft that can make the difference. With that sure knowledge, who in their right mind in a position of authority (think VLJ) would (or could) ever think justice was served by some half-baked, post hoc rationalization about a regulation which has been illegal on its face since February 19, 2019- the day the AMA and the ultra vires regulation went into effect.

This boils down to a “but for” argument. But for the Secretary incorrectly writing his regulation and purposefully deviating from the explicit language of Congress’ statute on February 19, 2019, Mr. Williams would have been granted SMC T before he died. And my Vet wouldn’t have been in this predicament either… for two more years-plus past when he should have been granted his T. That’s against the law across our 56 fruited VAROs and everyone involved knew it. But nobody spoke up for five years in Mr. Williams’ case. And nobody spoke up for over two years in my Johnnie Vet’s case either. Someone famous once said “Stupid is as stupid does.”

I’m a VA rainmaker. It’s my job to speak up. But then, by rights, I shouldn’t have to if VA is doing its job.

And that’s all I’m gonna say about that.