Hey there, brothers and sisters. As the founder of HadIt.com Veterans and someone who's been through the VA claims process including SMC awards, I want to break down the recent Barry v. McDonough ruling and what it means for your SMC benefits.

This 2024 Federal Circuit decision is a game-changer, and I want to make sure you understand how to maximize your compensation.

The Barry v. McDonough Decision

First, let's look at the ruling itself. You can find the full text of the Barry v. McDonough Federal Circuit Court of Appeals decision (May 16, 2024) here. This decision clarified how 38 CFR § 3.350(f)(3) should be interpreted, opening up new possibilities for increased SMC.

Big changes and here's the deal:

• You can now get multiple SMC increases based on additional disabilities.
• Each qualifying set of disabilities that combine to 50% or higher, separate from your initial SMC-qualifying conditions, can bump up your compensation.
• These increases are mandatory - the VA can't just decide not to give them to you.
• The VA has to consider all eligible disabilities, even if you didn't specifically claim them for SMC.

Understanding SMC Rates

To make sense of this, you need to understand the different SMC rates. Here's a breakdown with links to both the Code of Federal Regulations (CFR) and the United States Code (USC):

For a comprehensive overview of SMC, refer to M21-1, Part VIII, Subpart iv, Chapter 4, Section A.

Understanding 38 CFR 3.350(f)(3) and (f)(4)

Let's break down these two important regulations:

1. 38 CFR 3.350(f)(3): This allows for an intermediate rate or next higher statutory rate of SMC when a veteran has additional disabilities or combinations of disabilities that are independently ratable at 50% or more.
2. 38 CFR 3.350(f)(4): This provides for the next higher statutory rate of SMC when a veteran has a single permanent disability independently ratable at 100%.

Can both be applied? Yes, they can! These provisions can be used in combination to potentially increase your SMC rate even further. Here's how it works:

• First, apply 3.350(f)(3) for each set of disabilities that combine to 50% or more.
• Then, if you have a single disability rated at 100%, you can use 3.350(f)(4) for an additional increase.

How to Make This Work for You: A Real-World Example

In this case, the Veteran was initially granted SMC at the rate under 38 U.S.C. § 1114(l) for the need for regular aid and attendance due to a service-connected lumbar spine disability and associated bilateral lower extremity radiculopathy. However, the Veteran had additional disabilities that allowed for further increases:

1. Two intermediate steps were warranted for:
   • Posttraumatic stress disorder (70%)
   • Obstructive sleep apnea (50%)
   These bumped the SMC rate from (l) to (m).
2. A third intermediate step was warranted for the combined rating of:
   • Status-post gunshot wound to the left thigh and hip (20%)
   • Status-post gunshot scar to the left calf (20%)
   • Right knee shrapnel (10%)
   These combined to 46%, which adjusted up to 50% when considering the bilateral factor. This bumped the SMC rate from (m) to (m1/2).
3. A fourth intermediate step was warranted for the combined rating of:
   • Ischemic heart disease (30%)
   • Bilateral hearing loss (20%)
   • Chronic kidney disease (10%)
   • Tinnitus (10%)
   • Traumatic brain injury (10%)
   These combined to over 50%, bumping the SMC rate from (m1/2) to (n).

Need to Know

This example illustrates several key points:

• Multiple separate disabilities can be combined to achieve significant increases in SMC rates, even when individual ratings might seem relatively low.
• The VA will consider disabilities that are separate and distinct from those establishing the base SMC rate.
• Disabilities are combined using VA's Combined Ratings Table (38 C.F.R. § 4.25).
• Any evaluation of 45 to 49 percent is adjusted up to 50 percent when considering SMC increases.
• The bilateral factor (38 C.F.R. § 4.26) is considered when combining ratings for paired extremities.
• Each qualifying set of disabilities that combines to 50% or more can result in a "half-step" increase in SMC rate under 3.350(f)(3).
• A single 100% disability can result in a full-step increase under 3.350(f)(4).
• You can apply both 3.350(f)(3) and 3.350(f)(4) if you qualify for both.
• There's a maximum rate (SMC-O), so you can't go higher than that.

Taking Action

If you think this applies to you:

1. Take a hard look at your current disability ratings and how they combine.
2. Think about how Barry v. McDonough might apply to your situation.
3. Consider if you have both multiple 50%+ combinations AND a single 100% disability.
4. Get help from a VA-accredited rep or attorney who knows SMC claims inside and out.

Remember, we fought for our country, and now we need to fight for the benefits we've earned. Understanding these regulations and court decisions is key to getting what you deserve.