CAVC– HOWELL V. NICHOLSON– WHAT SMC-S REALLY SAYS

I find SMC or Special Monthly Compensation S, as accorded to us true War Vets, to be highly misunderstood by-gasp-Veterans Service Officers who should, by rights, be well-versed in this. I just ran into one on another HCV helpsite and he is obviously a Veterans Service Officer. He was convinced that our VA lawyers are only entitled to a maximum of $5,500. I’m sure he misunderstood that. VSOs would prefer lawyers get out of the business entirely.  Among possibly the most misunderstood is differentiating “S” (housebound) and the “AA” (Aid and Attendance 1 & 2)  referred to here in Mr. Howell’s decision as SMC-HB and SMC-AA. Watch the walnut shell with the “S” pea under it closely as it is going to move around a bit and be shoved to the bottom and the rear. 

This is a panel decision of three Judges (Kasold, Lance and Schoelen). They all signed it so it was unanimous and good law. The important thing to dial in on is that the VASEC is going to have to go back to 1945 for the definition of “S”. When he gets there, he’s not happy with what he finds but has to stoically suck it up. For those of you who haven’t yet experienced it, VA will drag in a long discussion of how you are not eligible for Aid and Attendance even though you specifically asked for a determination of Housebound. Here’s why.

38 USC § 1114 that deals with this lists the different levels of megadisability above and beyond what you and I call 100 percent schedular. We’re headed into Mr. Potatohead country where bits and pieces are missing. The levels of disability are listed as alphabetical letters with no apparent reason for why they started halfway through. SMC-K or Special K is the first and the second- cheapest at $101.50 a month. SMC-Q pays $67 a month and is a throwback to some unknown era. The next higher, even though non-sequential alphabetically, is S. S currently pays $341.44 which isn’t chump change. That will finance a nice Corvette payment monthly.

Next, as with all VA Statutes, the VASEC has to get his mitts on it and rearrange what goes where and why we have difficulty with this. 38 CFR § 3.350(i) Special aid and attendance benefit) is hidden beneath  38 CFR § 3.350(h) which deals with the Aid and Attendance ratings. It’s also the very last one. VA must cross that AA bridge every time to get to the S. It’s a magic rite of passage.
“The Vet filed for AA or, in the alternative, for Housebound. We will first discuss his entitlement to A&A and the reasons for his denial.” 

Part of the mystery is the form used. Here’s VAF 21-2680 and voilà-mystery solved. Hundreds of you have emailed me with the plaint “But I never asked for A&A”. Equally more have said their VSO said if they were strong enough to make it to a VAMC or the VSO offices then they (the service officer) could not, in good conscience, file a AA/HB request for examination and determination of status. Bad form.

Which brings us to our friend and fellow Veteran Mr. Robert L. Howell (no relation to Messieurs Bell and Howell) of the Korean Misunderstanding.

Copy of Howell 04-0624 opinion final

Old Bob got the pretzel brain syndrome over in Korea in ’55 and was eventually service connected at 70% thirty years later in 1981. His schizophrenia, put politely, was probably PTSD but the VA was still hammering out the details on what that was in 81. Shell shock and the thousand yard stare had fallen out of fashion by then and they were still fleshing out the DSV I or II Manual definitions. Schizoid worked and Bob could care less what they called it. In April 1982, they gave him the Full Ride VA scholarship with P&T. Everything went swimmingly right up until the twenty first century when the Bobmeister wrote in and said “Yo. I think I need some extra help here. My wife is now doing everything but change the diapers.”

Bob Howell, Cooooome on Doooown!

Well , you know the drill. Bob Howell! Coooooooome on Down and let’s see what’s in Monty’s Cookie Jar! so they could fit him for his new necktie. Bob outsmarted them by ten and said negatory, folks. My mental disorders prevent me from attending the C&P party. VA being VA, immediately got out the Ouija Board and construed this to mean he wanted both A&A and S. Only at a VARO could they torture this interpretation out of a plea for help.

In August 2000, the RO construed Mr. Howell’s letter as a claim for SMC benefits based on his being permanently housebound in addition to his claim for SMC benefits based on the need for aid and attendance, and it denied the claims. Mr. Howell filed a Notice of Disagreement with the RO’s decision.

And away this went. The BVA, like total ditzes, strapped on the stethoscopes and MD gear and waded in. Additionally, the shrinks and doctors all just wrote down what Mrs. Howell said about Bob’s condition(s) verbatim. Bob stepped in it too when he arrived in a wheel chair but said he didn’t use one around the house. The Veterans Law Judge must have been out on the golf course by eleven that morning laughing his ass off at how dumb Vets were and hitting in the high seventies.  Unfortunately, when you play the adjudications game, you have to kowtow to the rules. The VLJ went waaaay off the reservation on this one. I’m of a mind that he honestly didn’t even know what “housebound” really was and acquiesced to his minions and the status quo.

On appeal, the Board denied Mr. Howell’s claim for SMC on the basis that his schizophrenia, as his “sole service-connected disability, alone, does not render him housebound or in need of the regular aid and attendance of another person.” Regarding Mr. Howell’s housebound status, the Board specifically found that “the record reflects that the veteran is able to leave his house to  attend to regular treatment appointments . . . and to attend VA examinations when motivated.”  The Board concluded that “the record clearly reflects that he is able to leave his house when desired, and there is otherwise no evidence suggesting that it is his psychiatric disability, rather than his numerous physical disabilities, which interferes with his ability to leave home.” 

About here is where the shit got pretty deep. And I’d like to add that comment about  “when motivated” was a purposeful dig. The BVA are like a bunch of kids all dressed up in robes and playing judge. They are easily swayed by their boss who wants to husband the VA’s funds for his buddies. Thus if everyone plays ball, everyone gets a present in the December paycheck for being a “Team member and concerned stakeholder” in the proper outcome of Veterans Law. One little problem. Let’s go back to 1945.

When they got to Court, everyone started looking at when SMC S was born, to whom and what the parentage of it was. Sometimes these things have strange beginnings and even stranger definitions. Lo and behold, so did SMC S. Being “housebound” actually wasn’t entirely what was envisioned by Congress in ’45. As usual, something was lost in the translation. Ever tried the old party game where you lean over to Jim and say Steve got a promotion today? Jim leans over to Sheila and says Steve got a raise. Sheila turns to Dora and says Steve got laid off today. By the time it gets to around twenty reiterations in the loud, ETOH-driven room, old Steve got divorced and Sandi got the house, the Beamer and the kids.

What was lost here is very important:

Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the
claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.

You will notice this is a completely different interpretation first brought to light in Mr. Howell’s case. The Office of General Counsel idiotically defended this denial right into Court and then had to say “Yeah, Well. Mr. Howell’s right. We agree. We really don’t have a legal leg to stand on here on how we screwed him with the “housebound” definition.  So… how’s about you remand this back down to us at the BVA denial factory and we get a fresh horse and a new rope and rehang him all proper-like, hear?”

And that’s just exactly what Judges Kasold, Lance and Schoelen did. It was all they could do. It’s like repatriating an illegal Hispanic immigrant on the next bus back to Tijuana. Unpleasant- but all they could do legally. I do like the way they gutted the OGC on Espiritu and LeShore.

I’d have to research it but I do not believe I found any more of Mr. Howell’s travails at the Court. With Kenny “the Woodbutcher” Carpenter, Nicholson’s krewe probably decided to fold up the tent and go home. Mr. Howell must have lived happily ever after and gotten R 1  or 2.

Our teaching moment is quite simple. Housebound, as defined by VA, is far more restrictive that Congress’. Add to it that it is also violated to this day on a regular basis using the same logic declared void and manifestly in error back in 2006-over eight years ago.

Housebound, as defined by Congress, means your disabilities keep you from leaving the house to go to work. In order to work, most of us have to leave the house-ergo having to stay home because you can’t work is what makes you “substantially housebound”. That’s a far cry from what VA tries to imply. Make sure you understand the difference. To me, being 100% schedular with a ripsnorting good case of the schizzies and being seventy-ish is a pretty good recipe for housebound all in itself. Why VA didn’t see that in Mr. Howell will remain a mystery for the ages.

Knowledge on why these things are important, Ladies and Gentleman Vets.