Not since the epochal SMC precedence set in Bradley versus Peake waaay back in 2008 have we seen anything to upstage this one. Buie v. Shinseki may have been a close second running neck and neck with Jensen v. Shulkin but today’s Federal Court decision in Barry is earthshattering and will very possibly bankrupt the VA. All these years (since 1945) VA has insisted §3.350(f)(3) or (f)(4) could only be awarded once apiece. Further, if you had a 50% or greater rating separate and distinct from the index 100% disease or injury that granted you aid and attendance, and you were awarded a new 100% rating for, say, coronary artery disease, you lost any prior half step awarded under 3.350(f)(3) and matriculated to (f)(4). So… let’s play with this in real time under the new Barry metric.

Click to access 22-1747.OPINION.5-16-2024_2318741.pdf

The interesting thing that jumps out at you-Johnny litigator- is the implications of how all this was written in ’45. I never thought it was very ambiguous in the least but I’m pro-Vet- not some mugwump VA Rater looking to deprive Vets of any and every dime they can deny. Let’s start with §3.350(f)(3). It’s in what we call the SMC P arena.

(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.

Okay, pilgrims. Pack that away in the brainbox for a moment and digest this one- §3.350(f)(4):

(4) Additional independent 100 percent ratings. 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 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). In the application of this subparagraph the single permanent disability independently ratable at 100 percent 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.

Both subsections appear to be regurgitations of a basic tenet-i.e., if you get an extra 50% rating and it’s a different body part, you get a bump up one half step from SMC L to L ½. Concurrently, if you get a an extra 100% rating and it’s a different body part, you get a full step bump up from L to M. But….let’s examine how §3.350(f)(3) notably differs from (f)(4)  in its semantics. (f)(3) says  “additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more”. On the other hand, (f)(4) says “additional single permanent disability independently ratable at 100 percent.” See where the camel got his nose under the tent? 

To my thinking, the much-maligned Village Idiot of Dr. Phil fame could easily parse the meaning of this one without strippin a brain gear. I noticed it back in 2016 when I really began to delve into SMC law. I even argued it fervently to VA raters at DRO hearings or  BVA judges to no avail. VA’s thinking was very linear. Their position was “If it was available we’d have been doing it that way since 1945. Buzz off. Nothing to see here. Move along.”

So along comes VA Agent James J. Perciavalle, Sgt, USMC (Retired), of Veterans Advocates Group, LLC fame (logo above), and jumped into this controversy a few steps ahead of me. He decided to take it up to the Court. Since he wasn’t admitted to the bar, he contacted  his good friends over at Carpenter Chartered to do so. The Court ruled against him which quite frankly surprised me. One of the Judges was Mike Allen who swore me in to the Court Bar. Of all the justices, I would have bet heavily on him voting to uphold the multiple awards entitlement interpretation of (f)(3).

At any rate, the Federal Circuit has spoken. Not only did they speak to this but they reversed it as being unlawful. Their interpretation is binding and they feel Congress spoke to this quite succinctly in 1945. That the VA Administrator in ’45, and now the VA Secretary in 2024, have spoken to the subject and insist their interpretation is correct, the Fed Circus has finally addressed this inequity for the first time. As such, that makes their misinterpretation of law retroactive to 1945. All I have to say is “Gentlemen, start your keyboards and begin filing Clear and Unmistakable Error claims.” VA has been  perpetuating the error for 79 years. I believe it was Senator Alan Cranston who first observed in 1988 that VA had existed in splendid isolation since the War of 1812 and now had to be dragged into the 20th century kicking and screaming to afford Veterans their due. I’d say he was off by thirty six years. Better late than never.

It does remain to be seen whether Denis the Menace might choose to defend this travesty at the Supreme Court. In that event, it will become McDonough versus Barry if he does. I do hope he sees the error of his ways. The operable phrase is, and always has been a nonadversarial Veteran friendly ex parte venue in which to present our claims. What part of that is so hard to entertain?  Yo. Remember us? You know. The ones who have borne the battle for you? Our widows? Our orphaned children? When the shit hits the fan, you folks always call on us. When it’s over, we’re forgotten and the parades cease. Welcome home my ass.

Make it so, Numbah One. And be quick about it.

P.S. A reader emailed me to ask what this looks like in real life. Read the attached  Code Sheet. Vet is 100% on 11/08/2017. He gets SMC L for Loss of use of lower extremities on 10/12/2018. He wins 100% for IHD and gets bump from L to M under §3.350(f)(4) effective 2/05/2019. This is currently up on HLR to get the bump to M which they missed.

Now, with Barry, he will also get a bump from M to M ½ because he has 40% for Prostate and 10% for tinnitus which equals another 50% separate and distinct under §3.350(f)(3). And… it’s retroactive to the date he qualified because Barry is a reversal due to incorrect reading of §3.350(f)(3) for  79 years. So, SMC L½ would occur when he was awarded the L originally and the M½ would be effective the date of his 100% award for IHD @ 100% or 2/05/2019.

Now you folks can understand why you dang near need a Ph.D. to figure all this out. Redact code sheet example of Barry precedence