Laska: SMC(t), plain meaning, and the VA's attempt to impose a higher burden on veterans

Laska v. McDonough, Case Number 22-1018, decided September 6, 2024 concerned whether a veteran should receive SMC(t) for a traumatic brain injury and the VA’s attempt to read into the regulation a requirement for regular aid and attendance.  The Court rejected the VA’s attempt to make SMC(t) harder to get than was outlined in the statute passed by Congress.

Initially, special monthly compensation provide for compensation where service connected disabilities result in additional hardships above and beyond those contemplated by the VA’s rating schedule.  The veteran’s attorney provided both a PO box and street address on the appointment form.  The Board denied an appeal in a September 2021 decision and listed only the physical address and not the P.O. box.  The veteran appointed a VSO in January 2022 for another claim, which caused the attorney to lose access to the electronic claims file.  The attorney’s access was restored in September 2023 when the veteran appointed him again and counsel filed the NOA in December 2023. 

 The statute governing SMC(t) states it should be granted “when a veteran (1) is in need of regular aid and attendance for service-connected residuals of TBI; (2) is not eligible for compensation under subsection (r)(2); and (3) 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).”  Id. at *5. 

The regulation promulgated by the VA states that aa higher level of care is needed 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 under the regular supervision of a licensed healthcare professional." 

 The veteran argued the VA erred in denying the claim for SMC(t) for a lack of a higher level of care because the plain language of the statute does not require it and the VA’s regulation exceeds the statute.  The VA argued that the statute was not clear on its face and the regulation was a valid definition of the level of care required for SMC(t).

 The Court was faced with statutory interpretation and determined:

 “Section 1114, as a whole, can logically be read to give the same meaning to "regular aid and attendance" in both subsection (l) and the first requirement of subsection (t), as modified with the third requirement of needing "hospitalization, nursing home care, or other residential institutional care" in the absence of regular aid and attendance. Unlike the Secretary's strained interpretation of the text and structure of section 1114(t), this reading comports with the plain language of subsection (t) and harmonizes that provision with the rest of the statute.”

Id. at *11.

The Court also stated that while the plain language was clear, the legislative history also supported their conclusion.  They noted “According to the Senate Committee, veterans with TBI not only need assistance with tasks they can no longer perform, but also someone to facilitate tasks they cannot keep up with. Id. And the Senate Committee made clear that such assistance can be provided by a family member rather than a licensed health-care professional.”  Id. at *12.  The also noted: “nothing in section 1114(t)'s legislative history reflects that Congress intended to impose a higher-level care requirement for SMC(t). To the contrary, that legislative history confirms our plain language and structural analysis that the level of care required for SMC(t) is the need for regular aid and attendance under (r)(1).”  Id

The Court concluded: “section 1114(t) specifies that the requisite level of care for entitlement to SMC(t) is the need for regular aid and attendance and the Secretary's implementing regulation, § 3.352(b)(2), requires the higher-level care described in 1114(r)(2). Thus, the regulation exceeds its authorizing statute and must be set aside as invalid.”

This is an important decision for anyone that has ever been denied a SMC(t) rating and should open the door to greater assistance.  It also demonstrates the VA’s willingness to impose higher burdens than those imposed by Congress.

Decision by Chief Judge Bartley and joined in by Judges Falvey and Laurer. 

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