Long have we waited for some guidance on this subject. The quandary was, and still is, simple…and ageless. Reading §3.350(f)(3) or, arguendo, (f)(4), is it open to conjecture as to whether a half-step and/or a whole step increase in SMC is applicable more than once? The M 21 says ‘No!’ and sturickly profriggin’ forbids it. But seriously, reducing §3.350(f)(3)/(4) down to DickandJanespeak, doesn’t it seem rational that a Vet could accrue more than one (f)(3) for a half-step bump from SMC L to L 1/2, and on to M (or more)? Chevron non-deference anyone? In the same vein, could Johnny Vet be awarded more than one (f)(4) bump from L to M and thence, perchance, on to N? Add in an (f)(3) and a K and poof-the next thing you know, you’d wake up in SMC O land… and still have two legs intact.
Up to now, there have been many vociferous arguments both pro and con. As you can imagine, various minds, up until Barry v. McDonough, were divided on the subject. I still am. Last year, I did look up about 7 BVA instances in which a VLJ indeed granted a double bump at (f)(3) or a combo of (3) and (4). Therefore, no one can look you in the eye and start a valid stare decisis argument. I’ve also searched the Purple Book for some guidance and found nothing. If Denis the Menace is going to hang his hat on the M 21, I doubt the Fed. Circus would give it much credence. Every time I ever quoted the M 21 to a BVA Judge, I had to eat my hat pretty tout de suite. Their unanimous response was “We don’t allow that shit in here. Gimme a CFR, a USC or sit down, bubba.” I know I put the links somewhere showing double bumps but it would take some forensic sleuthing to retrieve them.
What is intriguing are the possibilities of continued appeal above to the Fed. Circus. Or not. I personally believe this panel decision is not the correct vehicle to reverse this precedence. But if not this one, our opportunity will slip away into res judicata without some vociferous appellate disagreement. Think about it. Read the whole 28-page decision, and boy howdy is it a close second to the Gutenberg Bible. Then look at what was not taken into consideration in the appeal. Even better yet, look at the 10-page dissent by- of all Judges- Jacquith the Unmerciful. He’s an ex-JAG (’82-2011) lifer who only made O-6. Not a glowing judicial resume. But nowadays we all get a trophy for being a Participant so I’ll shut up. Shoot. He’s probably like Col. Lynsey Graham and has a Bronze Star and never heard a shot fired in anger.
Judge Jacquith’s dissent doesn’t buy into half of what Mr. Barry is asking for. He does find disfavor with the concept that you cannot have two (2, deux, hai, song) awards of (f)(3)…
Based on these facts, the veteran argues that the plain meaning of §3.350(f)(3) entitles him to four intermediate rate increases, to the SMC rate prescribed by section 1114(o). The Secretary
contends that the one intermediate increase the veteran has received is all he is entitled to under the plain meaning of the regulation. The majority reads subsection (f)(3) the way the Secretary does but acknowledges that the plain language of §3.350(f)(3) does not conclusively resolve the issue. The words I see in subsection (f)(3) give the veteran SMC at the section 1114(n) rate, but no higher.
But hey. Let’s read it ourselves…
(f)(3) “Additional independent 50 percent disabilities. 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. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.”
Here’s what my feeble brain extrapolates from the (f)(3) regulation. If you have extra disability or disabilities, and have a few that can be constructed using the old Buie v. Shinseki Cash Flow System (based on the Dave Del Dotto model), then you should be allowed to do it. Remember the operable word ‘nonadversarial’ and the §3.103 mantra of Browkowski.
However, in (f)4), the language is more nuanced and explicit. All those multiple expressions of “disabilities” (plural) are absent. Nobody who litigates for a living could try the Bradley v. Peake argument that (f)(4)’s language is ambiguous and TDIU would be okay as a stand in for an (f)(4) 100% schedular disability…
(f)(4)”…additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o).”
What I do not see anywhere in the Barry decision is a well-argued BVA argument below before Mr. Barry arrived at the Court. The panel decision discusses issue exhaustion and issue preclusion. At the BVA, you have to argue case or controversy-or both. Either the VA pukes at Ft. Whacko, Texas misread (f)(3)/(4) by depending on their exalted belief in M21 or they didn’t have the facts right. You have to say up front what is wrong. If the VLJ denies, you can import that argument to the Court and reargue it. You have to “exhaust” the issue at the BVA. If you never brought it up to the VLJ, you cannot litigate it at the Court. That’s issue preclusion. You can’t just keep boiling more spaghetti and trying to get a new batch to stick to the wall at 625 Indiana Ave. NW. A pro se Vet can get away with some small stuff if s/he gets a sympathetic Court. Here, you couldn’t get a better Judge than Allen. Falvey and Jacquith are renowned for disliking Vets. Falvey has more Texas necktie parties under his belt than even he can count. That’s not what you want to draw to on a panel. Which is why Jacquith is somewhat the oddity here. To me, his arguments are under-developed because he doesn’t even look at the legality of getting two SMC Ls for a&a. See §3.350(e)(1)(ii).
Regrouping and going back to the AOJ
Why not go back to Fort Whacko to the beginning and argue if any of these hundreds of ratings he has could be fashioned into a single TDIU a la Myler v. Derwinski. After all, a shit ton of SFW’d muscle groups will be rated by muscle groups (MG), not individual muscles. Some are going to be minor and some are going to be waaaaay out there in severe country-or missing completely. But the amalgam of all those MG percentages could show a clearcut case of TDIU which frees up other disabilities which are separate and distinct and make them available to be added up into (f)(3) packages of 1/2 step bumps.
Think about what Congress intended with SMC. So few of the Judges other than, say, O’Malley, understand that SMC is a cumulative thing. The closer you are to resembling Hogan’s famous Goat, the more you should be awarded. Just as you can be granted two SMC Ls for separate and distinct disabilities involving different anatomical components (think PTSD and IHD), so, too, would it seem you could get multiple combos of (f)(3)s because let’s face it. You may be missing more fingers and toes and eyes and cojones than the average bear and you shouldn’t be short-sheeted by (f)(3) for it. SMC is a cumulative game. The more you get shot off or exploded off what you were born with, the more you should get. (f)(4) doesn’t suffer from ambiguity the way (f)(3) does, however.
I love my SMC bookends of Bradley and Buie but, as with any legal screwdriver, you have to use them correctly. First, Mr. Barry did not put forth a theory of rearranging his disabilities a la Buie post-award to maximize his entitlement and permit VA, as they say in Unicorn country, ‘to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government’. If he goes back down to Ft. Whacko, he preserves his effective dates and can reargue TDIU instead of a 100% combined. This is win-win but sadly will not stay the decision about multiple (f)(3)s.
I know it sounds weird to try to disagree with a finding of 100% combined and the big check and argue instead for TDIU based on one specific disability of 60% (think IHD) or 70% (PTSD). What the hey. We’re in an AMA wonderland these days. Make a u-turn from the CAVC, march smartly back to Fort Fumble and refile a supplemental with an IMO or a VRE assessment of dead in the water-including the impossibility of selling time share condos in Hawaii from the privacy of your own home for $12 K a month. That’s certainly one repair order.
But, as for undoing the CAVC panel decision, it will be cast in concrete if not appealed to the Fed. Circus. While Jacquith’s dissent will be noted, Mr. Barry will have to find a Veteran-friendly panel above- one where Jacquith’s pro Veteran dissent will resonate. Or, Mr. Barry could ask for an en banc Court do over. There, I wager to say he may get a different outcome-maybe a win.
Everyone has the benefit of Monday morning quarterbacking when looking at any case. I sure do not mean to pick apart Ken Dojaquez’ work. I understand. I get a lot of cases that are already cast in concrete below and you have to search for the escape hatch to win or work with what you’re dealt. The above are a few suggestions I’d make which are a day late and dollar short. The ‘but he had…’ arguments that come to mind all lead to the Fed. Circus if we, as Veterans, are to right the misunderstanding of (f)(3). At this point it’s imperative to appeal it because the Fed. Circus may take a look at the (f)(3) regulation and come to a completely different conclusion. Like old Spec 4 Gump said about a box of chocolates, You never know what you’re gonna get.
P.S. Everyone likes a good dog story.