We live in interesting times. As most know, I’ve been making life miserable for countless VA Secretaries over the last several decades. I’ve come to expect a certain amount of pushback and recalcitrance to grant my clients’ rightfully earned benefits. I always prevail eventually but here below, witness the LA Regional Office’s decision to quit torturing my client and just chieu hoi without a long extended appeal back to the Board to sweep up the broken glass. Boy howdy when this happens, I tend to move my wallet to a front pocket and start looking over my shoulder for the inevitable other shoe to drop.
The Fed Circus, back on May 16, 2024, came down with the decision that §3.350(f)(3) could be awarded more than once. In fact, there was no limit to how many times except that you obviously could not exceed the maximum SMC entitlement of O.
I had always subscribed to this interpretation- and always lost -when trying to attain multiple awards in addition to full-step increases under §3.350(f)(4). While the Barry decision pointedly declined to specifically address (f)(4), it did point out something we can all take heart in. It stated that 38 USC §1114 and its counterpart 38 CFR §3.350 have remained virtually unchanged since their promulgation in 1946. That’s a subtle way for the Court to say that if the regulation is still the same, then something stinks down at the corner of Delay Street and Deny Avenue NW.
That’s an important consideration to just throw out there if you are hoping for retroactive awards under Barry. Think about it. Barry didn’t change the statute or regulation. They merely clarified what the original meaning was-that Congress knew how to remunerate us and didn’t step on its collective tongue when they wrote §1114(p).
Many litigators think the only way to go back and “fix” all these old injustices is to file a CUE claim to reclaim their retro pay for their clients. There is much precedence on the subject of retroactivity as it applies to CUE. Many say it is a fool’s errand. Many sit and dawdle on the sidelines waiting for a definitive answer. Many doesn’t include me. I don’t practice law. I perform it.
When you claim a CUE has occurred, you have to prove one of two things. Did they screw up and misread the regulations then in force? Or did they possibly make the decision based on an incomplete record? After either one of these errors singly has been proven to exist based on the “reasonable minds can only concur” model, the next salient question is “Did it manifestly change the outcome or was it harmless error?
Some of my compadres in the lawdog profession think that the legal standard is more along the lines of “did they misconstrue the meaning of the existing regulation and thus err?” But that’s not the legal standard of review. §20.1403 states ” Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.
Quite simply, to me, if §3.350(f)(3) says
” In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. “
(and it does), then that, to, me, constitutes “regulatory provisions at the time that were incorrectly applied. I fail to see the words “my bad” or “we misunderstood such that we screwed hundreds of thousands of Veterans since ’46”.
Veterans of all ages will readily concede that when VA screws up, they rarely overpay you thousands of dollars. The reverse is more often true. That’s why many of us have to make the pilgrimage to DC several times to obtain what is legally ours. I don’t remember how many CUEs I’ve won but more often than not, the decision after appeal is “Yep. We screwed up. Here’s your brand new shiny 0% rating for _________. Now, if you want a compensable rating going back to 1972 for your Johnnie Vet, you’re gonna have to saddle up and start over, bubba.”
Where Barry bumps are concerned, you folks on SMC have no idea how many of you got the poopy end of the punji stick. Think how many of you had 100% ratings in the form of TDIUs and additional 60% or more ratings for conditions totally separate for other things back before 2008. Are they saying “Yep, but you can’t file a CUE on that because it was sort of a difference of opinion as to whether to give it to you. ” Uh-uh, it doesn’t work that way. If the regulation said 100% + 60 = SMC S, then you were due that extra $300 Corvette payment in 1956.
In order to avoid the CUE fight, I file for the Barry bumps after the BVA grants the a&a. Encarnacion v. McDonough says we have to file to fix a “ministerial grant of the BVA” after their decision and we have to do that by asking the very idiots who screwed us. That would be the local Fort Fumble- not the Board. We can’t just hang a u turn and go back to the Board and say “Dude, they forgot to Barry bump me at Fort Whacko down in Texas.”
Don’t ever claim CUE. It’s not a “final” decision yet. I say “gimme the money, honey” at Fort Fumble after BVA grants. VA always says “Go suck an egg”. I’m forced to take it to the BVA to get the money. But here’s where it gets interesting. The BVA will always grant the claim for the Barry bumps and advance you to the correct alphabetical letter involved but the Fort Fumbles will always assign the retroactive dates for the Barry bumps. At least they always do that for me.
Think of your BVA Veterans Law Judge like the Roman Emperor down at the Colosseum in 44 B.C.. If he holds up his thumb, you live. If he points it down, you don’t. But he doesn’t come down to the colosseum floor to shake your hand or cut your throat. The Fort Fumbles across our fruited plains have that job. They write the decision and hand out the money.
Now, it could be they (the local yokels) are doing it incorrectly and are supposed to only grant post-2024 bumps… but they don’t. Does that mean they can mount up the posse and come back and jack you for the retro 5 years later? Probably not. It’s their error- not yours. But could it be that the Secretary has now decided to grant retro anyway? After you get your teeth kicked in by the CAFC, could be you don’t much feel like picking another fight with them for a while.
To illustrate this better, I went up to the BVA for two things for my nursing home Vet who’s lived there (the nursing home- not the BVA) for over 3 years. By law, if you go into an institutional home, it’s a given you need a&a. Emanuel kept filing for a&a and they’d send him a QTC notice to report on June ___, 2020 at 1234 Yellow Brick Road in Long Beach. Emanuel has no car and it’s 35 miles away. That’s a nasty trip- even in his electric wheelchair. So he’d call up and say “How do I get there”? QTC would say ‘Not our problem. Call your wife’. Emanuel is divorced. Lather, rinse and repeat 4 or five times years.
When Emanuel came to me in September of ’25, he said no VA attorney or Agent would take his claim on because he was already TDIU and there was no money in it for them! DAV said “What’s SMC?” I got him a raise from 70 to 100 for his PTSD first, then a&a, then a 100% for his heart and finally an 80 for his Stage 3 kidneys. They denied a second a&a for loss of use so I went around them. I filed for a K because he had a dead winky from his DM II. They’d denied that back in 2014. That gave him what we needed to go for N 1/2 + K capabilities and a different pathway to R1 via §3.350(h)(2).
While I was waiting for the K, I asked for an earlier effective date for the IHD. As I mentioned a few weeks ago in an earlier blog, The BVA decided to give him a&a going back 4 years earlier than I asked for. I was waiting for the SMC K to launch the R1. But if I’d filed it as a CUE asking for the Barry bumps, they might have only given them to him commencing after Barry went into effect on May 17, 2024.
Here’s my legal brief, the BVA decision, the Rating Decision and the Code sheet. In addition, I attach the temporary SMC Calculator memo VA is using until they incorporate the Fed. Circus Barry Bump precedence into the M 21. As many of you don’t know, the VAOIG came out with a paper on how the AMA version of the SMC calculator refuses to go above SMC M last year. Funny thing is their old Legacy calculator still works just fine. Quite the coincidence, huh?
Redact BVA 10182 filed 3.24.2026
Winning claims at the VA is rapidly becoming an art form. Old techniques are passé. You have to constantly reinvent the wheel to stay ahead of these folks- especially in this new world of AI. The teaching moment, if there is one, is that you should never rush out and start throwing out CUE claims if the decision is less than a year old. I got booted off Hadit.com for telling old Berta that.
But, by the same token, sometimes you can use a regular claim for a higher SMC rating based on a new disability to get a can opener into it ( a final claim older than a year) and get the Barry retro they declare is unattainable before Barry was decided.
In closing, I would like to say thank you to all my readership who send me U- tube links to the ever-increasing numbers of “VA experts” who know so much. I watch and laugh and then pray Veterans are not listening to this tripe. VA has a 26% accuracy rate per the CAVC. Would you really follow the advice of an auto mechanic who had torn down and rebuilt a go-kart engine and is now an avowed expert on 914 Porsches and how to adjust the fuel injection settings? How about a former VA rater? He’s blindly copied and pasted everything his Coach dictated to him straight out of the M 21 for ten years but suddenly he’s self-employed and an independent thinker capable of correctly interpreting Part 3 of 38 CFR and the latest CAVC/CAFC precedence. Better yet, if you subscribe to his newsletter and sign up for his boot camp for a small, one-time fee of $199.99, you can be at Permanent and Total in no time flat. If only it were that easy. I wonder if they refund your money when you strike out.
VA law is getting more complex each passing day. None of us can outthink AI but we can outmaneuvre them. It’s a stacked deck. If you are still using a VSO or attempting all this pro se with the help of all the Combat Kraigs and CivDiv folks out there, you’re in for some rough sledding if it involves SMC. Tinnitus, hemorrhoids and flat feet are 10% Mardi Gras beads on Fat Tuesday night. SMC is far more complicated- like becoming the King and Queen of the float and riding up front in the Krewe cab.
True knowledge of how to fight VA on SMC can’t be had out there in Utube Internet land. I try to illustrate it for free to a certain extent but I can’t supply anything more than generalized advice. Each claim is unique and requires an attack plan tailored to the Veteran’s individual circumstances.
RIP MLB 1961-2026





























































































































I see Hadit.com has reverted back to an ad-free venue again. In spite of the change, it would appear they’re having a hard time keeping the lights on. They have an active section devoted just to seeking donations. Again, what do they do with all this money?










