Barry v. McDonough, Case Number 20-3367, decided February 3, 2022 discusses the ability to gain half-steps for SMC ratings.
Special Monthly Compensation (SMC?) is a system that provides for compensation at a disability rate above that provided in the rating schedule.
The case involves intermediate or half-step rating increase in SMC under certain circumstances. “The specific question we address today is whether § 3.350(f)(3) may be used more than once to provide for such an intermediate or half-step rating increase for SMC. In other words, does § 3.350(f)(3) provide for only one intermediate rating or may it be used to provide multiple intermediate ratings subject only to the maximum rate payable for SMC? Because we hold that § 3.350(f)(3) entitles a claimant to receive only one half-step rating increase in SMC benefits, we conclude that the Board did not err when it failed to discuss the possibility of entitlement to any additional half-step ratings under § 3.350(f)(3).”
Essentially the veteran argued that multiple half-step SMC ratings could accrue to an entire step increase. The Court characterized the veteran argument as:
“the plain language of the regulation provides for as many intermediate increases as a claimant's condition can justify, subject only to the maximum SMC rate Congress has set. In that regard, he provides an example of how he believes § 3.350(f)(3) should have been applied in his case. His application goes like this: we start with appellant's entitlement to SMC(m) based on the loss of use of his legs; then VA should consider that he has a 70% rating for PTSD that allows him to go up one intermediate step to receive compensation at the SMC(m 1/2) level; then VA should consider that he has two 30% ratings for left eye conditions that combine to make a 50% rating, which entitles him to another intermediate step to receive compensation at the SMC(n) level; then combining his left and right shoulder ratings, he would get another intermediate increase up the SMC(n 1/2) level; and finally, the remainder of his disabilities combine to a 50% rating that entitles him to obtain the maximum rate for SMC benefits, provided for at the SMC(o) level.”
The veteran also argued some alternative bases for an increase, which led to a discussion about issue exhaustion. The Court noted that though the veteran argued the invalidity of a regulation for the first time before the Court, it was appropriate for the Court to consider the argument because the Board is bound by VA regulations and it would have been futile to make such an argument before the Board. The Court also focused on the purely legal nature of the question.
As to the statutory review, the Court admitted the plain language of regulation 3.350(f) does not resolve the question. Id at *12. Instead, the Court pointed to the statutory language of 1114(p), in which “Congress provides that "the Secretary may allow the next higher rate or an intermediate rate." The use of the terms "the" and "an" in conjunction with the singular term "rate" in the authorizing statute indicates that one singular "rate" would be provided through any regulation the Secretary adopted to implement the statute.”
Ultimately, the Court determined:
“In sum, we hold that § 3.350(f)(3) can only be used once to increase a claimant's SMC rate. As explained above, there are indications pointing to that interpretation even if we confined ourselves to the language of (f)(3) standing alone. In addition, Congress purposefully omitted language concerning repeated use in section 1114(p), on which (f)(3) is based, despite permitting repeated use in other sections of the statute. And, reading § 3.350(f)(3) as we do, provides purpose for its subsequent subsection (f)(4). Because we can use the tools of interpretation to assess the regulation's meaning, we need not resort to other canons of construction, including deference to the Agency's interpretation of the regulation were it "genuinely ambiguous" or the pro-veteran rule of construction from Brown v. Gardner. Therefore, we hold that the Board did not err when it failed to consider the application of § 3.350(f)(3) more than once in its assessment of whether appellant was entitled to a higher SMC rate.”
Judge Jaquith concurred and dissented in part. He argued the plain meaning of the statute and regulation do provide for “two half-step increases—to the intermediate rate and, for the veteran already there, to the next higher statutory rate.” Id. at *18. Judge Jaquith leaned on the plain meaning of the statute and regulation as well as the duty to maximize benefits and the pro-veteran canon.
This decision blocks off the full compensation allowed by multiple half-step SMC ratings. It has been appealed to the Federal Circuit and I look forward to its resolution.
Decision by Judge Allen and joined by Falvey. Dissent by Judge Jaquith.
To know more about whether Thomas Andrews can help you, please visit my website.
No comments:
Post a Comment