Barry v. McDonough, Case Number 2022-1747, decided May 16, 2024 is a decision by the Federal Circuit and discusses special monthly compensation (SMC) and how it is impacted by multiple SMC increases.
Factually, the Court explained: “The Department of Veterans Affairs (“VA”) initially gave Mr. Barry a 100% disability rating and awarded him SMC. After receiving several subsequent rating decisions, Mr. Barry received the rating decision at issue here in December 2014. His compensated disabling conditions include the amputation of his right leg above the knee, rated at 100%, the loss of use of his left foot, the loss of use of his left leg, and a constellation of other conditions related to his legs and feet. Based on these ratings, Mr. Barry received SMC at the rate specified in 38 U.S.C. § 1114(m) and received an intermediate-rate increase in his SMC under 38 C.F.R. § 3.350(f)(3). Mr. Barry does not receive SMC, however, for his many other disabling conditions: post-traumatic stress disorder, rated at 70%; right shoulder arthritis, rated at 60%; left shoulder arthritis, rated at 50%; left eye injury with glaucoma, rated at 30%; left eye disfigurement, rated at 30%; bilateral hearing loss, rated at 20%; lumbar spine injury, rated at 10%; right hand injury, rated at 10%; left and right hip joint disease, rated at 10% each; hypertension, rated at 10%; and tinnitus, rated at 10%.” Id. at *5.
The Court explained “Mr. Barry appealed the Board’s determination to the Veterans Court. Mr. Barry principally argued that the Board erred by not considering whether he would be entitled to an additional SMC increase under 38 C.F.R. § 3.350(f)(3). Since Mr. Barry had already received one SMC increase under § 3.350(f)(3), the Veterans Court framed the question as whether § 3.350(f)(3) entitled a veteran to only one SMC increase or whether a veteran could increase his SMC under § 3.350(f)(3) more than once.” Id. at *6. The majority of the Veterans Court determined a veteran could only receive one SMC increase under 3.350(f)(3).
The Court began with the text but determined “the plain language of § 3.350(f)(3) standing alone does not conclusively resolve the issue dividing the parties.” Decision, 35 Vet. App. at 122. Having elicited all we can from the isolated text of § 3.350(f)(3), then, we turn to context.” Id. at *11.
When the Court turned to the context, they determined: “The broader statutory and regulatory context unambiguously shows that 38 C.F.R. § 3.350(f)(3) can provide for more than one SMC increase.” Id. at *11.
The Court dug into the surrounding statutory language and stated: “Taken together, these provisions describe an SMC program that has: (1) eligibility requirements to show entitlement to SMC or SMC increases; (2) mandatory SMC awards or increases; and (3) an SMC cap. At least for 38 U.S.C. § 1114(p), insofar as it relates to our interpretation of 38 C.F.R. § 3.350(f)(3) here, Congress did not add additional limitations or requirements, nor should we. We do not add limitations to the statutory scheme that are not reflected in the text of the law Congress passed.” Id. at *13.
The Court concluded: “In sum, as long as Mr. Barry is entitled to an intermediate-rate SMC increase under 38 C.F.R. § 3.350(f)(3), he shall receive it, subject to the explicit cap. Thus, § 3.350(f)(3), in the context of other statutory and regulatory provisions, unambiguously allows for more than one intermediate-rate SMC increase. We decline the government’s invitation to read in new requirements that Congress and the Secretary did not create.” Id. at *13.
Judge Lourie dissented, arguing that “38 C.F.R. § 3.350(f)(3), when examined in the context of the regulation’s surrounding subsections and the statute that they implement, has only a single reasonable meaning: that a veteran is limited to a single half-step increase in SMC benefits, irrespective of how many additional single service-connected disabilities or combinations of service-connected disabilities the veteran may have that are independently ratable at 50 percent or higher.” Id. at *32.
This decision is both a careful example of contextually reading a statute. But, also important in unlocking SMC increases that were otherwise denied by the VA.
Decision by Judge Prost and joined by Judge Reyna with a dissent by Judge Lourie.
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