The Laska Decision: Making it Easier for Veterans with Traumatic Brian Injury to Qualify for SMC-T
101st Airborne 81 mm mortar crew firing a round -Operation Wheeler 1967
In late 2024, the Court of Appeals for Veterans Claims (CAVC) handed down a landmark decision that completely changed the landscape of Veteran’s claims for Special Monthly Compensation for severe traumatic brain injury (TBI). Veterans may be eligible for SMC(t) if they are severely disabled by a service-connected TBI and the residuals from it cause the Veteran to be in need of assistance with activities of daily living (ADLs).
Up until recently the VA held the (erroneous) position that to be eligible for SMC(t), the Veteran had to be in need of a higher-level of care from a licensed healthcare professional as a result of the TBI instead of the “regular care” provided by a loved one. Essentially they were arguing that you had to meet the criteria of SMC(r)(2) just to be eligible for SMC(t).
4th Infantry Division soldier searching a cave -Quang Ngai 1967
This was a flawed argument because the very reason Congress added SMC(t) was because they recognized that the significant residuals of TBIs were different than the typical medical conditions that would qualify a Veteran for SMC(r)(2), and that some of those Veterans with TBI would not meet the eligibility requirement of a higher-level of care of SMC(r)(2).
SMC(r)(2) requires that the Veteran would need "hospitalization, nursing home care, or other residential institutional care" in the absence of higher-level care. Congress further defines a higher level of care as "as involving daily, personal, health-care services by a licensed health-care professional." (emphasis added)
Thankfully, late last year this position was emphatically rejected by the US Court of Appeals for Veterans Claims (CAVC) in the Haskell v. McDonough case which later became Laska v. McDonough after Mrs. Laska (the surviving spouse) took over the case when her husband passed away.
In the Laska decision the Court noted:
"The Senate Committee highlighted that veterans with TBI may require 24-hour care, supervision for safety, assistance with most higher-level activities, or prompting or much longer time to perform activities of daily living than they did pre-injury. 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. And the Senate Committee made clear that such assistance can be provided by a family member rather than a licensed health-care professional." (emphasis added)
So Laska removed the VA’s extra-statutory requirement that a Veteran would need in-home care by a healthcare professional, and instead it can now be provided by a loved one. It's the same "regular" level of A&A that you find in SMC(l).
Because of the Laska decision, the requirements for SMC(t) are now:
The Veteran needs regular aid and attendance (A&A) for the residuals of TBI, and
The Veteran is not eligible for a higher level of A&A under SMC(r)(2), and
The Veteran would need hospitalization, nursing home care, or other residential institutional care without in-home A&A.
9th Infantry Division UH-1C airlifted by CH-47A landing at LZ Bearcat in 1967
Laska was a HUGE win for Veterans with TBI and it is worth reading in full: https://law.justia.com/cases/federal/appellate-courts/cavc/22-1018/22-1018-2024-09-06.html