Does This SMC CAFC Decision Help Anyone?

[Lemuel]

Does this SMC decision by the CAFC help anyone:  22-1747.OPINION.5-16-2024_2318741.pdf (uscourts.gov)  Barry V McDonough if you want to search on your own and not use the link.

I am wondering if this is the hold up on Laska V. McDonough, at the CAVC 22-1018.  

The CAVC looks like holding to the Code on the SMC over the Secretary and limiting regulations.  Looks good, I think, for TBI victims.

[El Train]

Damn, all that legal mumbo jumbo is a painful read.  I couldn't take it anymore half way through it.

[Lemuel]

I usually go about halfway through also and then skip to the conclusions.  That is where the meat is.  They tell you what they decided and why.  I will give it a better read tomorrow and expand on why I think that decision was the hold up on the more important decision for me on TBI SMC-T and the Secretary's change of the Code at the CAVC.  What I  am basically saying on my first go through is, this decision is also about "overreach of the Secretary in writing 38 CFR" and is therefore what is holding up the Laska v McDonough decision (was Haskell v McDonough to look up the hearing on U-tube). 

If you listen to that hearing, Haskell, who was much sicker than I am, had a medically trained person controlling his medication but she did not have "higher level training"  (A Bachelor of Nursing) as a qualification and therefore that VAGC was arguing, Haskell was not qualified to receive SMC-t. According to the VAGC in that case, I would be qualified to receive SMC-t and be able to hire, with the extra income, all of the care I need in my home, at my lower level of need, to enable me to stay in my home and not sell it and move to an expensive "assisted living" with nursing care.  I could hire the house keeping and the Nurse to come in and fill a medication dispenser once a week so an unskilled caregiver or housekeeper would not make a mistake with my medication.

The big thing here is the roadblock that previously existed of a VA medical record not being able to be challenged without a "higher trained" independent medical opinion.

Poor veterans do not have the funds to go out and pay a lot of money to get those independent Medical Opinions (IMO). 

I picked up on a recommended "forensic medical expert" recommended.  $500.00 per opinion, but you have to provide a record of "the diagnosis".  That is not forensic medicine as I understand it to be.  I wouls like a pathologist to say, from this record, particularly these documents, I believe the assessment of the C&P examination is in error.  I would expect to find these things on autopsy after this person is deceased which would prove the errors.

We need to go back to the BVA decisions on these to find what evidence (facts) were used to support the arguments on both of these decisions.  In other words, do we have similar evidence to establish similar facts in our files to get the decisions we believe we deserve.  Do the facts support the Code more than the Regulations and therefore support an attorney asking the court to find "overreach" in writing the Regulations.

Prior to these recent precedential decisions, a challenge to the regulation not following the Code had to be raised within 6 months.  How are you going to challenge a regulation within 6 months if you find the regulation does not follow the Code in your case, that is filed more than 6 months, 6 years or 6 decades after the Secretary wrote the Regulations in it annual correction of regulations to the Code and sent back to Congress for approval in one big batch that no Congressman probably ever read.

 

[Tbird]

try this it summarizes barryv mcdonough