Case: 22-1747    Document: 44     Page: 1   Filed: 05/16/2024




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                   DANIEL D. BARRY,
                    Claimant-Appellant

                             v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                        2022-1747
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 20-3367, Judge Grant Jaquith,
 Judge Joseph L. Falvey, Jr, Judge Michael P. Allen.
                 ______________________

                  Decided: May 16, 2024
                  ______________________

     JINGYUAN LUO, Orrick, Herrington & Sutcliffe LLP,
 Menlo Park, CA, argued for claimant-appellant. Also rep-
 resented by MELANIE L. BOSTWICK, Washington, DC;
 KENNETH DOJAQUEZ, Carpenter Chartered, Topeka, KS.

     MARTIN F. HOCKEY, JR., Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for respondent-appellee. Also repre-
 sented by SOSUN BAE, BRIAN M. BOYNTON, PATRICIA M.
 MCCARTHY; BRIAN D. GRIFFIN, ANDREW J. STEINBERG,
Case: 22-1747      Document: 44      Page: 2     Filed: 05/16/2024




 2                                         BARRY v. MCDONOUGH




 Office of General Counsel, United States Department of
 Veterans Affairs, Washington, DC.
                  ______________________

     Before LOURIE, PROST, and REYNA, Circuit Judges.
     Opinion for the court filed by Circuit Judge PROST.
     Dissenting opinion filed by Circuit Judge LOURIE.
 PROST, Circuit Judge.
     Daniel D. Barry appeals a final decision of the United
 States Court of Appeals for Veterans Claims (“Veterans
 Court”) limiting his entitlement to additional special
 monthly compensation (“SMC”). Barry v. McDonough, 

 (2022) (“Decision”). In the underlying pro-
 ceedings, Mr. Barry argued that the Board of Veterans’ Ap-
 peals (“Board”) should have considered his entitlement to
 multiple SMC increases, rather than just one, under 

(f)(3). 1 A majority of the Veterans Court dis-
 agreed and interpreted § 3.350(f)(3) to permit only one
 SMC increase, regardless of how many qualifying disabili-
 ties Mr. Barry could demonstrate. As we explain below,
 § 3.350(f)(3) does not limit how many SMC increases can
 be provided; instead, it is a mandatory entitlement that can
 apply multiple times, subject to a statutory cap. We thus
 reverse and remand.
                          BACKGROUND
                                I
    The United States recognizes the sacrifices that veter-
 ans like Mr. Barry make when they serve our country.
 Whenever a veteran has a “disability resulting from per-
 sonal injury suffered . . . in line of duty . . . during a period



     1   The text of the statutory and relevant regulatory
 provisions are set out in the appendix.
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 BARRY v. MCDONOUGH                                         3



 of war” the United States “will pay” that veteran. 

. Congress has outlined these payments in 

. The exact amount of compensation for a disabled
 veteran depends on that veteran’s disability rating. The
 compensation amount increases as the disability rating in-
 creases in increments of 10%, with the maximum at a
 100%, or total, rating. 

(a)–(j).
      Congress recognized, however, that veterans may have
 additional disabling conditions that warrant extra compen-
 sation beyond the compensation for a total disability rat-
 ing. It therefore enacted SMC provisions to provide extra
 compensation to “exceptionally disabled veterans who are
 rated as totally disabled.” Guerra v. Shinseki, 

 (Fed. Cir. 2012). The details of these SMC pro-
 visions are listed in § 1114(k)–(t). Demonstrating eligibil-
 ity for SMC requires a veteran to show specific disabling
 conditions.
      It was recognized early on that the specificity of these
 provisions could potentially lead to arguable inequities.
 For example, while a veteran may not be able to show “the
 anatomical loss of both legs with factors that prevent the
 use of prosthetic appliances,” as § 1114(n) specifically re-
 quires, he may have other disabilities with an equivalent
 cumulative impact. Thus, to allow for more flexibility, Con-
 gress amended the predecessor to § 1114 in 1945 “to pro-
 vide additional rates of compensation or pension and
 remedy inequalities as to specific service-incurred disabili-
 ties in excess of total disability.” Act of September 20,
 1945, 

ch. 369, sec. 1, 

, 533.
 It did so by adding subsection (p), which at the time stated
 that, “[i]n the event the disabled person’s service-incurred
 disabilities exceed the requirements for any of the rates
 prescribed herein, the Administrator, in his discretion,
 may allow the next higher rate or an intermediate rate, but
 in no event in excess of” the statutory cap. 

 sec. 1, 59
 Stat. at 534. This subsection provided the Administrator
 (now the Secretary of Veterans Affairs (“Secretary”))
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 4                                        BARRY v. MCDONOUGH




 discretion to fairly compensate a veteran for additional dis-
 abilities for which Congress did not specifically provide.
     Section 1114(p) exists in substantially the same form
 today. The relevant portion here provides that, “in the
 event the veteran’s service-connected disabilities exceed
 the requirements for any of the rates prescribed in this sec-
 tion, the Secretary may allow the next higher rate or an
 intermediate rate, but in no event in excess of” a statutory
 cap. 

(p). The intermediate rate in
 § 1114(p) is “the arithmetic mean, rounded down to the
 nearest dollar, between the two rates concerned.”
     The Secretary has implemented § 1114(p)’s discretion-
 ary clause in various provisions of 

(f). Sec-
 tion 3.350(f)(3), our focus in this case, provides:
     Additional independent 50 percent disabili-
     ties. In addition to the statutory rates payable un-
     der 38 U.S.C. 1114 (l) through (n) and the
     intermediate or next higher rate provisions out-
     lined above, additional single permanent disability
     or combinations of permanent disabilities inde-
     pendently 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 sub-
     paragraph the disability or disabilities inde-
     pendently ratable at 50 percent or more must be
     separate and distinct and involve different anatom-
     ical segments or bodily systems from the conditions
     establishing entitlement under 38 U.S.C. 1114 (l)
     through (n) or the intermediate rate provisions out-
     lined above. The graduated ratings for arrested tu-
     berculosis will not be utilized in this connection,
     but the permanent residuals of tuberculosis may be
     utilized.
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 BARRY v. MCDONOUGH                                             5



 

(f)(3) (first emphasis in original, all other
 emphasis added).
                                II
     Mr. Barry served in the Army from July 31, 1969, to
 November 18, 1971. He earned a Purple Heart for his ser-
 vice after being injured during combat. His resulting inju-
 ries were, and are, significant. At the time, they required
 an open amputation of his right leg above the knee. He also
 suffered an extensive loss of tissue on his left leg that ex-
 posed his tibia, had fragment wounds in his right hand and
 eye, and received injuries to both ears. In all, Mr. Barry
 remained in the hospital for thirteen months until he re-
 ceived disability retirement from the military.
      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 De-
 cember 2014. His compensated disabling conditions in-
 clude 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 re-
 ceived SMC at the rate specified in 

(m) and
 received an intermediate-rate increase in his SMC under
 

(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 glau-
 coma, 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%.
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 6                                       BARRY v. MCDONOUGH




                              III
      Mr. Barry appealed the 2014 rating decision to the
 Board, arguing that he should receive an SMC increase
 above what he was already awarded, based on his addi-
 tional uncompensated disabilities listed above. The Board
 initially denied his appeal, but the Veterans Court re-
 manded for further explanation and consideration of poten-
 tial additional SMC entitlement.         The Board then
 concluded that Mr. Barry could not show entitlement to an
 SMC increase under 

(f)(4) (a conclusion
 we do not address here).
      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 enti-
 tled to an additional SMC increase under 

(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 vet-
 eran to only one SMC increase or whether a veteran could
 increase his SMC under § 3.350(f)(3) more than once. De-
 cision, 35 Vet. App. at 122.
     In a split decision, the Veterans Court panel majority
 concluded that 

(f)(3) could provide for only
 one SMC increase. 

 at 120–24. In reaching this conclu-
 sion, the majority first reasoned that the text of
 § 3.350(f)(3) contemplated only one increase in SMC. Id. at
 122. The majority also determined that the text of 

(p), the statutory provision providing author-
 ity for § 3.350(f)(3), pointed toward the same interpreta-
 tion. Id. Further, the majority compared § 3.350(f)(3) to
 other SMC provisions and concluded that the differences in
 language indicated that § 3.350(f)(3) provides for only one
 increase in SMC. Id. at 122–23. Finally, the majority de-
 termined that reading § 3.350(f)(3) to provide for more than
 one SMC increase would render another provision,
 § 3.350(f)(4), superfluous. Id. at 123–24.
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 BARRY v. MCDONOUGH                                         7



      The dissent disagreed. It first noted that 

(f)(3) provides no limits on how many times it may
 apply. 

 (Jacquith, J., dissenting in part). Rather,
 the dissent concluded, § 3.350(f)(3)’s plain text shows that
 it can apply more than once. Id. at 129–30. The dissent
 further noted that the majority’s comparison with other
 statutory and regulatory SMC provisions did not warrant
 the conclusions the majority drew. Id.
     Mr. Barry appeals the Veterans Court’s decision.
                         DISCUSSION
                               I
     We have jurisdiction to review the Veterans Court’s in-
 terpretation of regulations. See 

(c); Augus-
 tine v. Principi, 

 (Fed. Cir. 2003). On
 appeal, Mr. Barry presents a pure legal argument about
 the interpretation of 

(f)(3) relied upon by
 the Veterans Court. We thus have jurisdiction to review
 his argument here.
                              II
      When interpreting a regulatory provision, we apply the
 rules of statutory construction. Goodman v. Shulkin, 

 (Fed. Cir. 2017). To this end, we examine
 the “text, structure, history, and purpose” of a regulation
 to determine its meaning. Kisor v. Wilkie, 

 (2019). As always, we first “examine the regulatory
 language itself to determine its plain meaning.” Hanser v.
 McDonough, 

 (Fed. Cir. 2022) (quoting
 Goodman, 

). “If the regulatory language
 is clear and unambiguous, the inquiry ends with the plain
 meaning.” 

 (quoting Goodman, 

). Im-
 portantly, “the plain meaning that we seek to discern is the
 plain meaning of the whole statute or regulation, not of iso-
 lated sentences.” Boeing Co. v. Sec’y of Air Force, 

 (Fed. Cir. 2020) (cleaned up).
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 8                                       BARRY v. MCDONOUGH




                              III
     We now turn to the question here: whether 

(f)(3) provides for only one increase in SMC or
 whether it can provide for more than one SMC increase in
 instances such as this, where the veteran has additional
 ratings for uncompensated disabilities. We first analyze
 the text of the provision itself and explain why the isolated
 text does not decide this issue. We then analyze the statu-
 tory and regulatory context and explain why it demon-
 strates that § 3.350(f)(3) unambiguously can provide for
 more than one SMC increase, subject to a statutory cap on
 benefits. See 

(f)(3) (“not above the [

](o) rate”).
                               A
     We begin with 

(f)(3)’s text. Both Mr.
 Barry and the government offer competing arguments for
 why the text of § 3.350(f)(3) alone unambiguously supports
 their positions. As we explain, however, § 3.350(f)(3)’s iso-
 lated text does not definitively resolve our inquiry.
     The government makes two textual arguments. It first
 invokes language providing for an increase to “the next
 higher intermediate rate” or “the next higher statutory
 rate.” 

(f)(3) (emphasis added). The gov-
 ernment argues that § 3.350(f)(3)’s use of the singular
 “rate” implies that only one intermediate-rate increase is
 permitted.
     But the text is not so clear. Discerning meaning from
 the use of a singular instead of a plural form is a recognized
 rule of interpretation. Johnson v. McDonald, 

 (Fed. Cir. 2014). But the singular “rate” in
 § 3.350(f)(3) is consistent with both the government’s inter-
 pretation and another interpretation—that the use of “the
 next higher intermediate rate” or “the next higher statu-
 tory rate” merely specifies the new rate after applying
 § 3.350(f)(3)’s SMC increase.           Under the second
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 BARRY v. MCDONOUGH                                            9



 interpretation, § 3.350(f)(3)’s increase could apply more
 than once. So while the government’s argument is not un-
 moored from the text, the singular “rate” is consistent with
 both competing interpretations here. Thus, the singular
 “rate” on its own does not determine how many SMC in-
 creases § 3.350(f)(3) permits. Jones v. United States, 

 (1999) (“But what we make of the singular-
 plural distinction turns on the circumstances.”); see Sursely
 v. Peake, 

 (Fed. Cir. 2009) (concluding
 that “it is impossible to determine the proper boundaries of
 the Secretary’s authority pursuant to § 1162 with reference
 only to the singular nature of the indefinite article ‘a’”); cf.
 Pulsifer v. United States, 

, 728–30 (2024)
 (concluding that a grammatical rule involving the use of
 “and” versus “or” in the First Step Act did not resolve an
 interpretive question where that rule was consistent with
 two competing interpretations). 2
     The government also argues that the use of “or” be-
 tween “additional single permanent disability” and “combi-
 nations of permanent disabilities” means that only one of
 an additional single permanent disability or a combination
 of permanent disabilities can provide for an SMC increase



     2   We note in passing that, if indeed § 3.350(f)(3) were
 intended to clearly provide for just one intermediate-rate
 SMC increase, its text makes for an odd choice. Again, it
 says that certain “additional single permanent disability or
 combinations of permanent disabilities” can provide for its
 intermediate-rate SMC increase. 

(f)(3).
 Not only does it not say “an” “additional . . . disability,”
 which might have further connoted “just one”; it uses “com-
 binations” plural, when it very well could have used the
 singular “combination.” While too thin to definitively pro-
 vide for multiple intermediate-rate SMC increases, this
 language further suggests the government reads too much
 into the singular “rate.”
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 10                                       BARRY v. MCDONOUGH




 under 

(f)(3). The government infers from
 this that § 3.350(f)(3) can provide for only one SMC in-
 crease even where, as here, the veteran may qualify for ad-
 ditional SMC increases based on uncompensated
 disabilities.
     We reject the government’s reading. “The word ‘or’
 simply signifies that either” a single additional disability
 or a combination of disabilities “is sufficient to qualify for
 the” SMC increase. See Sursely, 

 (empha-
 sis in original). “It implies nothing about whether, after
 the veteran has been awarded” one SMC increase under
 § 3.350(f)(3), “the veteran can also be considered for” an ad-
 ditional SMC increase based on additional uncompensated
 disabilities. See id. (emphasis in original); cf. Pulsifer, 144
 S. Ct. at 729 (explaining that the conjunction “or” in con-
 text did not resolve a dispute over meaning).
     Mr. Barry offers the contrary view that the plain text
 unambiguously shows that 

(f)(3) can pro-
 vide for more than one SMC increase. He argues that, be-
 cause § 3.350(f)(3) provides for an SMC increase when a
 veteran is “already entitled to an intermediate rate,” the
 veteran could have arrived at that intermediate rate under
 a previous application of § 3.350(f)(3).
     The language he cites, however, does not clearly estab-
 lish the meaning he seeks to elicit. Section 3.350(f)(1) and
 (2) provide for intermediate-rate SMC increases that are
 unrelated to the increase in § 3.350(f)(3). Therefore, the
 “already entitled to an intermediate rate” language in
 § 3.350(f)(3) could refer to these other provisions providing
 an intermediate-rate SMC increase and not a prior in-
 crease under § 3.350(f)(3). The only other pertinent lan-
 guage discusses how the disability or disabilities conferring
 § 3.350(f)(3)’s intermediate-rate increase must be “sepa-
 rate and distinct” from those giving increases under
 § 3.350(f)(1) or (2). While no language forecloses multiple
 SMC increases under § 3.350(f)(3), there is likewise no
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 BARRY v. MCDONOUGH                                         11



 language unambiguously providing for multiple SMC in-
 creases. Mr. Barry’s argument, like the government’s ar-
 gument regarding the singular “rate,” does not definitively
 resolve the question here.
     Therefore, as the Veterans Court majority recognized,
 “the plain language of § 3.350(f)(3) standing alone does not
 conclusively resolve the issue dividing the parties.” Deci-
 sion, 35 Vet. App. at 122. Having elicited all we can from
 the isolated text of § 3.350(f)(3), then, we turn to context.
                               B
                               1
     The broader statutory and regulatory context unam-
 biguously shows that 

(f)(3) can provide for
 more than one SMC increase.
     Consider how 

 and 

 operate in tandem. Congress and the VA have set eligibil-
 ity requirements for compensation and SMC. To qualify
 for compensation, a veteran must have a disability with a
 specified rating. 

(a)–(j); see also 

 § 1155
 (requiring the Secretary to adopt a schedule of disability
 ratings). Showing SMC eligibility requires that a veteran
 demonstrate specific disabling conditions, often beyond the
 conditions conferring original entitlement to compensa-
 tion. Id. § 1114(k)–(t). Section 3.350 reflects these same
 SMC eligibility requirements.
     Once a veteran demonstrates SMC eligibility, the rele-
 vant provisions mandate an SMC award or increase. For
 example, 

(k) states that “the rate of com-
 pensation shall be $96 per month for each such loss or loss
 of use.” 

 § 1114(k) (emphasis added). Portions of 

(p), separate from its discretionary clause,
 provide that “the Secretary shall allow the next intermedi-
 ate rate” or “the next higher rate” when a veteran has cer-
 tain disabling conditions. 

 § 1114(p) (emphasis added).
 And even the regulatory provision at issue here is
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 12                                       BARRY v. MCDONOUGH




 mandatory: it provides that “additional single permanent
 disability or combinations of permanent disabilities inde-
 pendently ratable at 50 percent or more will afford entitle-
 ment to the next higher intermediate rate.” 

(f)(3); see also Augustine, 

 (conclud-
 ing that § 3.350(f)(3) is mandatory). In this situation, the
 statutory and regulatory provisions “establish[] a baseline
 rule that, absent some other limitation, the VA must pay a
 veteran’s benefits.” Rudisill v. McDonough, 

,
 954 (2024); see also Sursely, 

 n.4 (“Because
 the statute speaks in mandatory language, the Secretary is
 in fact required to pay multiple clothing allowances to a
 veteran who, as determined under the Secretary’s regula-
 tions, uses multiple qualifying appliances.”).
     The only relevant “other limitation” here comes in the
 form of a statutory compensation cap. For example, 

(k) provides a $96 increase in SMC for each
 specified anatomical loss or loss of use, with a cap on com-
 pensation. And § 1114(p), which provides authority for the
 intermediate-rate SMC increase in 

(f)(3),
 identifies a cap beyond which SMC cannot increase. 3
     Taken together, these provisions describe an SMC pro-
 gram that has: (1) eligibility requirements to show entitle-
 ment to SMC or SMC increases; (2) mandatory SMC
 awards or increases; and (3) an SMC cap. At least for 

(p), insofar as it relates to our interpretation
 of 

(f)(3) here, Congress did not add addi-
 tional 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. Va. Ura-
 nium, Inc. v. Warren, 

 (2019) (“[I]t is


      3  Even apart from the authorizing statutory provi-
 sion of § 1114(p), the regulatory provision 

(f)(3) includes a cap. See, e.g., 

(f)(3)
 (“but not above the [§ 1114](o) rate”).
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 BARRY v. MCDONOUGH                                         13



 our duty to respect not only what Congress wrote but, as
 importantly, what it didn’t write.”). Likewise, we do not
 add terms to a regulatory provision that the Secretary did
 not include. Here, that means we will not add a limitation
 on how many times § 3.350(f)(3) can provide for an SMC
 increase that does not otherwise exist.
     Other veterans-benefits regulations confirm our con-
 clusion here. “[I]t is a common tool of statutory construc-
 tion to consider what words or phrases mean in nearby
 statute sections or related regulations.” Palm Beach Cnty.
 v. Fed. Aviation Admin., 

 (11th Cir.
 2022); see also Hanser, 

 (“Regulatory inter-
 pretation, like statutory interpretation, ‘is a holistic en-
 deavor that requires consideration of a [regulatory] scheme
 in its entirety.’” (alteration in original) (quoting Meeks v.
 West, 

 (Fed. Cir. 2000))). The VA has
 issued regulations specifying that certain benefits cannot
 be obtained more than once. E.g., 

(b)
 (“The individual may choose to receive benefits under 38
 U.S.C. chapter 33 at any time, but not more than once dur-
 ing a certified term, quarter, or semester.”); see also Urban
 v. Shinseki, 

 (Fed. Cir. 2011) (non-
 precedential) (“At the time of Mr. Urban’s death, regula-
 tions established that the assistance available under sec-
 tion 2101 would ‘not be available to any veteran more than
 once.’” (quoting 

, 3.809a (1997))). The ab-
 sence of any similar limit in 

(f)(3) confirms
 our conclusion that this provision permits more than one
 SMC increase.
     In sum, as long as Mr. Barry is entitled to an interme-
 diate-rate SMC increase under 

(f)(3), he
 shall receive it, subject to the explicit cap.        Thus,
 § 3.350(f)(3), in the context of other statutory and regula-
 tory provisions, unambiguously allows for more than one
 intermediate-rate SMC increase. We decline the govern-
 ment’s invitation to read in new requirements that Con-
 gress and the Secretary did not create.
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 14                                     BARRY v. MCDONOUGH




                              2
      The government offers multiple structural arguments
 involving other statutory and regulatory language that it
 contends support the opposite conclusion. The first set of
 arguments involves an intrastatutory comparison between
 

(k) and (p) and an intraregulatory compar-
 ison between 

(a) and (f)(3). Section
 1114(k) provides for a specified SMC increase “for each
 such loss or loss of use” of enumerated organs and bodily
 functions, § 1114(k) (emphasis added), and section
 3.350(a), which implements § 1114(k), mirrors § 1114(k)’s
 text for the purposes here. Section 1114(p)’s discretionary
 clause, on the other hand, provides that “in the event the
 veteran’s service-connected disabilities exceed the require-
 ments for any of the rates prescribed in this section, the
 Secretary may allow the next higher rate or an intermediate
 rate.” § 1114(p) (emphasis added). And § 3.350(f)(3), which
 gets its authority from § 1114(p), provides that additional
 disabilities (or combinations) independently rated at 50%
 or more “will afford entitlement to the next higher interme-
 diate rate.”      The government argues that, because
 § 1114(k) and § 3.350(a) give SMC increases “for each”
 listed condition, and because § 1114(p) and § 3.350(f)(3) do
 not say “for each,” we should infer—and conclude—that the
 latter two provisions do not provide for an SMC increase
 for each qualifying 50%-or-more disability (or combina-
 tion).
     In advancing this argument, the government relies on
 the well-recognized principle, sometimes called the mean-
 ingful-variation canon, that “[w]here Congress includes
 particular language in one section of a statute but omits it
 in another section of the same Act, it is generally presumed
 that Congress acts intentionally and purposely in the dis-
 parate inclusion or exclusion.” Russello v. United States,
 

 (1983) (cleaned up). As the Supreme Court
 has recently recognized, however, “[t]he principle is mostly
 applied to terms with some heft and distinctiveness, whose
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 BARRY v. MCDONOUGH                                      15



 use drafters are likely to keep track of and standardize.”
 Pulsifer, 144 S. Ct. at 735. In Pulsifer, the Court distin-
 guished terms like “principal activity” and “money remu-
 neration,” which were terms with the “heft” to warrant
 applying the meaningful-variation canon, from the ordi-
 nary conjunctions “and” and “or,” which were “ubiquitous”
 and “sometimes context-dependent” words such that the
 meaningful-variation canon might not apply. Id. This pre-
 sumption of meaningful variation also “grows weaker with
 each difference in the formulation of the provisions under
 inspection.” City of Columbus v. Ours Garage & Wrecker
 Serv., Inc., 

 (2002).
     These limitations on the meaningful-variation canon
 undermine the strength that the government’s intrastatu-
 tory and intraregulatory comparisons might have in a vac-
 uum. To start, the words “for each” lack the “heft and
 distinctiveness” to warrant the application of the meaning-
 ful-variation canon in this circumstance. See Pulsifer, 144
 S. Ct. at 735. Far from terms like “principal activity” or
 “money remuneration,” they are instead common words
 with a “sometimes context-dependent” meaning, and we
 have no reason to expect that Congress (or the Secretary)
 would ensure consistent usage of the common phrase “for
 each” throughout a statute (or regulation). See id.
     The operational differences between § 1114(k) and (p)
 also undermine the strength of the meaningful-variation
 canon here. Section 1114(k) enumerates several different
 disabling conditions that give a relatively minor SMC in-
 crease. Because this section provides a small SMC increase
 per condition, its operation could be undermined without
 specifying that each condition independently confers an in-
 crease in SMC. Without “for each,” § 1114(k) could be read
 to give just one single SMC increase for any number of the
 enumerated disabling conditions connected by the disjunc-
 tive “or.” So “for each” merely clarifies the common-sense
 operation intended by the text: if a veteran has several of
 the listed conditions, he gets several minor SMC increases.
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 16                                      BARRY v. MCDONOUGH




      Section 1114(p)’s discretionary clause, in contrast,
 gives the Secretary discretion to determine when a veteran
 may receive an intermediate-rate SMC increase. By dele-
 gating to the Secretary discretion to determine how many
 intermediate-rate SMC increases a veteran may receive,
 Congress expressed its choice not to cabin the number of
 possible intermediate-rate SMC increases in § 1114(p)’s
 discretionary clause. Specific limitations on how many in-
 termediate-rate SMC increases a veteran may receive
 would instead come from the relevant regulatory provi-
 sions, other non-regulatory determinations by the Secre-
 tary), or the broader SMC statutory and regulatory
 structure. Cf. Augustine, 

 (concluding that
 

(f)(3) is mandatory even though 

(p) is discretionary). The operational differences be-
 tween 

(k) and (p) mean that the presence
 of “for each” in § 1114(k), and their absence in § 1114(p),
 does not provide much information about whether these
 linguistic differences reflect a congressional choice to limit
 § 1114(p)’s discretionary clause to providing one intermedi-
 ate-rate SMC increase. See City of Columbus, 

.
     We similarly conclude that the operational differences
 between 

(a) and (f)(3) undermine the force
 of the meaningful-variation canon here. Section 3.350(a)
 specifies that it provides for an SMC increase “for each”
 enumerated condition to clarify that it provides for multi-
 ple such SMC increases, as we explained above regarding
 

(k). Section 3.350(f)(3) works differently.
 It provides for an intermediate-rate SMC increase “[i]n ad-
 dition to the statutory rates payable” under § 1114(l)–(n).
 

(f)(3). By its terms, § 3.350(f)(3) applies
 in a narrower set of circumstances than § 3.350(a), which
 can provide its SMC increase in addition to the rates estab-
 lished in 

(a)–(n) and (s). Moreover, unlike
 § 3.350(a), § 3.350(f)(3) does not enumerate the disability
 or combination of disabilities that can confer its
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 BARRY v. MCDONOUGH                                            17



 intermediate-rate SMC increase; instead, it provides for an
 increase for any disability or combination of disabilities
 “independently ratable at 50 percent or more” that is “sep-
 arate and distinct and involve[s] different anatomical seg-
 ments or bodily systems” from those already conferring
 SMC under § 1114(l)–(n) or the other intermediate-rate
 SMC increases in § 3.350(f). Since § 3.350(f)(3) does not
 enumerate the universe of disabling conditions (or combi-
 nations thereof) that can confer its SMC increase, it lacks
 § 3.350(a)’s need to clarify that it is not limited to one single
 application. Put simply, the two regulatory provisions op-
 erate too differently to place much weight on the meaning-
 ful-variation canon.
      We further note that the meaningful-variation canon
 points both ways in this case. As we referenced above,
 other VA regulations addressing different benefits explic-
 itly restrict a veteran to receiving those benefits only once.
 The inconsistency with how Congress and the VA have spo-
 ken to the issue of how many times a veterans-benefits pro-
 vision can apply further undermines the informative power
 of the meaningful-variation canon here.
     Additionally, the implications of the government’s in-
 trastatutory comparison are in tension with how 

(f)(3) operates. According to the government, 

(p)’s discretionary clause permits only one in-
 termediate-rate SMC increase.             But 

(f)(3)’s intermediate-rate SMC increase contem-
 plates the possibility of a prior intermediate-rate SMC in-
 crease under § 3.350(f)(1) or (2). Many of the intermediate-
 rate SMC increases in § 3.350(f)(1) and (2) receive their au-
 thority from 

(p)’s discretionary clause.
 The government’s reading of § 1114(p)’s discretionary
 clause seems to prohibit multiple intermediate-rate SMC
 increases and might prevent, for example, an intermediate-
 rate increase under 

(f)(1) and a subse-
 quent intermediate-rate increase under § 3.350(f)(3). The
 inconsistency between the government’s argument and the
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 18                                      BARRY v. MCDONOUGH




 operation of § 3.350(f)(3) is another reason that we find the
 government’s meaningful-variation argument unpersua-
 sive.
     On the whole, and in view of our analysis of a statutory
 and regulatory scheme mandating intermediate-rate SMC
 increases, the presence of “for each” in 

(k)
 and 

(a), and their absence in 

(p) and 

(f)(3), does not persuade us
 to infer a limitation on the number of SMC increases pro-
 vided for by § 3.350(f)(3) that is simply not there.
     The government second argues that reading 

(f)(3) to provide for multiple SMC increases renders
 § 3.350(f)(4) superfluous. Section 3.350(f)(4) provides for
 an increase to the next statutory rate, or the next interme-
 diate rate if already entitled to an intermediate rate, based
 on “additional single permanent disability independently
 ratable at 100 percent”; in other words, § 3.350(f)(4) gives
 what equates to two intermediate-rate increases (com-
 pared to § 3.350(f)(3)’s single intermediate-rate increase).
 Section 3.350(f)(4) has a stricter eligibility requirement
 than § 3.350(f)(3). According to the government, “[i]f a vet-
 eran cannot meet the criteria in subsection (f)(4) for a full-
 step increase, it would be odd indeed to allow a veteran to
 qualify for a full-step increase or even more through multi-
 ple half-step increases via subsection (f)(3).” Appellee’s Br.
 24. But this is not odd at all. The disability or combination
 of disabilities providing an intermediate-rate SMC in-
 crease under § 3.350(f)(3) must be “separate and distinct
 and involve different anatomical segments or bodily sys-
 tems” from the disabling condition(s) providing a previous
 SMC increase. It is entirely plausible that a veteran with
 two distinct and additional disabilities, in two different an-
 atomical segments or bodily systems, rated at 50% or
 greater warrants a higher SMC rate than a veteran with
 one distinct and additional disability rated at 100%. We
 thus reject the government’s surplusage argument.
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 BARRY v. MCDONOUGH                                       19



                        CONCLUSION
     Section 3.350(f)(3), read in the context of other statu-
 tory and regulatory provisions, unambiguously permits
 multiple intermediate-rate SMC increases. The Veterans
 Court’s contrary interpretation cannot stand. We thus re-
 verse and remand for further proceedings, including the
 calculation of the number of intermediate-rate SMC in-
 creases Mr. Barry should receive.
                REVERSED AND REMANDED
                           COSTS
 Costs to Mr. Barry.
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 20                                       BARRY v. MCDONOUGH




                          APPENDIX
 

 – Rates of wartime disability com-
 pensation
 For the purposes of section 1110 of this title—
    (a) if and while the disability is rated 10 percent the
 monthly compensation shall be $123;
    (b) if and while the disability is rated 20 percent the
 monthly compensation shall be $243;
    (c) if and while the disability is rated 30 percent the
 monthly compensation shall be $376;
    (d) if and while the disability is rated 40 percent the
 monthly compensation shall be $541;
    (e) if and while the disability is rated 50 percent the
 monthly compensation shall be $770;
    (f) if and while the disability is rated 60 percent the
 monthly compensation shall be $974;
    (g) if and while the disability is rated 70 percent the
 monthly compensation shall be $1,228;
    (h) if and while the disability is rated 80 percent the
 monthly compensation shall be $1,427;
    (i) if and while the disability is rated 90 percent the
 monthly compensation shall be $1,604;
    (j) if and while the disability is rated as total the
 monthly compensation shall be $2,673;
     (k) if the veteran, as the result of service-connected dis-
 ability, has suffered the anatomical loss or loss of use of one
 or more creative organs, or one foot, or one hand, or both
 buttocks, or blindness of one eye, having only light percep-
 tion, has suffered complete organic aphonia with constant
 inability to communicate by speech, or deafness of both
 ears, having absence of air and bone conduction, or, in the
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 BARRY v. MCDONOUGH                                          21



 case of a woman veteran, has suffered the anatomical loss
 of 25 percent or more of tissue from a single breast or both
 breasts in combination (including loss by mastectomy or
 partial mastectomy) or has received radiation treatment of
 breast tissue, the rate of compensation therefor shall be
 $96 per month for each such loss or loss of use independent
 of any other compensation provided in subsections (a)
 through (j) or subsection (s) of this section but in no event
 to exceed $3,327 per month; and in the event the veteran
 has suffered one or more of the disabilities heretofore spec-
 ified in this subsection, in addition to the requirement for
 any of the rates specified in subsections (l) through (n) of
 this section, the rate of compensation shall be increased by
 $96 per month for each such loss or loss of use, but in no
 event to exceed $4,667 per month;
     (l) if the veteran, as the result of service-connected dis-
 ability, has suffered the anatomical loss or loss of use of
 both feet, or of one hand and one foot, or is blind in both
 eyes, with 5/200 visual acuity or less, or is permanently
 bedridden or with such significant disabilities as to be in
 need of regular aid and attendance, the monthly compen-
 sation shall be $3,327;
     (m) if the veteran, as the result of service-connected
 disability, has suffered the anatomical loss or loss of use of
 both hands, or of both legs with factors preventing natural
 knee action with prostheses in place, or of one arm and one
 leg with factors preventing natural elbow and knee action
 with prostheses in place, or has suffered blindness in both
 eyes having only light perception, or has suffered blindness
 in both eyes, rendering such veteran so significantly disa-
 bled as to be in need of regular aid and attendance, the
 monthly compensation shall be $3,671;
     (n) if the veteran, as the result of service-connected dis-
 ability, has suffered the anatomical loss or loss of use of
 both arms with factors preventing natural elbow action
 with prostheses in place, has suffered the anatomical loss
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 22                                       BARRY v. MCDONOUGH




 of both legs with factors that prevent the use of prosthetic
 appliances, or has suffered the anatomical loss of one arm
 and one leg with factors that prevent the use of prosthetic
 appliances, or has suffered the anatomical loss of both eyes,
 or has suffered blindness without light perception in both
 eyes, the monthly compensation shall be $4,176;
     (o) if the veteran, as the result of service-connected dis-
 ability, has suffered disability under conditions which
 would entitle such veteran to two or more of the rates pro-
 vided in one or more subsections (l) through (n) of this sec-
 tion, no condition being considered twice in the
 determination, or if the veteran has suffered bilateral deaf-
 ness (and the hearing impairment in either one or both
 ears is service connected) rated at 60 percent or more disa-
 bling and the veteran has also suffered service-connected
 total blindness with 20/200 visual acuity or less, or if the
 veteran has suffered service-connected total deafness in
 one ear or bilateral deafness (and the hearing impairment
 in either one or both ears is service connected) rated at 40
 percent or more disabling and the veteran has also suffered
 service-connected blindness having only light perception or
 less, or if the veteran has suffered the anatomical loss of
 both arms with factors that prevent the use of prosthetic
 appliances, the monthly compensation shall be $4,667;
      (p) in the event the veteran’s service-connected disabil-
 ities exceed the requirements for any of the rates pre-
 scribed in this section, the Secretary may allow the next
 higher rate or an intermediate rate, but in no event in ex-
 cess of $4,667. In the event the veteran has suffered ser-
 vice-connected blindness with 5/200 visual acuity or less
 and (1) has also suffered bilateral deafness (and the hear-
 ing impairment in either one or both ears is service con-
 nected) rated at no less than 30 percent disabling, the
 Secretary shall allow the next higher rate, or (2) has also
 suffered service-connected total deafness in one ear or ser-
 vice-connected anatomical loss or loss of use of one hand or
 one foot, the Secretary shall allow the next intermediate
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 BARRY v. MCDONOUGH                                            23



 rate, but in no event in excess of $4,667. In the event the
 veteran has suffered service-connected blindness, having
 only light perception or less, and has also suffered bilateral
 deafness (and the hearing impairment in either one or both
 ears is service connected) rated at 10 or 20 percent disa-
 bling, the Secretary shall allow the next intermediate rate,
 but in no event in excess of $4,667. In the event the veteran
 has suffered the anatomical loss or loss of use, or a combi-
 nation of anatomical loss and loss of use, of three extremi-
 ties, the Secretary shall allow the next higher rate or
 intermediate rate, but in no event in excess of $4,667. Any
 intermediate rate under this subsection shall be estab-
 lished at the arithmetic mean, rounded down to the nearest
 dollar, between the two rates concerned.
     [(q) Repealed. Pub. L. 90–493, § 4(a), Aug. 19, 1968, 

.]
     (r) Subject to section 5503(c) of this title, if any veteran,
 otherwise entitled to compensation authorized under sub-
 section (o) of this section, at the maximum rate authorized
 under subsection (p) of this section, or at the intermediate
 rate authorized between the rates authorized under sub-
 sections (n) and (o) of this section and at the rate author-
 ized under subsection (k) of this section, is in need of
 regular aid and attendance, then, in addition to such com-
 pensation—
     (1) the veteran shall be paid a monthly aid and at-
     tendance allowance at the rate of $2,002; or
     (2) if the veteran, in addition to such need for reg-
     ular aid and attendance, is in need of a higher level
     of care, such veteran shall be paid a monthly aid
     and attendance allowance at the rate of $2,983, in
     lieu of the allowance authorized in clause (1) of this
     subsection, if the Secretary finds that the veteran,
     in the absence of the provision of such care, would
     require hospitalization, nursing home care, or
     other residential institutional care.
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 24                                        BARRY v. MCDONOUGH




      For the purposes of clause (2) of this subsection,
      need for a higher level of care shall be considered
      to be need for personal health-care services pro-
      vided on a daily basis in the veteran’s home by a
      person who is licensed to provide such services or
      who provides such services under the regular su-
      pervision of a licensed health-care professional.
      The existence of the need for such care shall be de-
      termined by a physician employed by the Depart-
      ment or, in areas where no such physician is
      available, by a physician carrying out such function
      under contract or fee arrangement based on an ex-
      amination by such physician. For the purposes of
      section 1134 of this title, such allowance shall be
      considered as additional compensation payable for
      disability.
     (s) If the veteran has a service-connected disability
 rated as total, and (1) has additional service-connected dis-
 ability or disabilities independently ratable at 60 percent
 or more, or, (2) by reason of such veteran’s service-con-
 nected disability or disabilities, is permanently house-
 bound, then the monthly compensation shall be $2,993. For
 the purpose of this subsection, the requirement of “perma-
 nently housebound” will be considered to have been met
 when the veteran is substantially confined to such vet-
 eran’s house (ward or clinical areas, if institutionalized) or
 immediate premises due to a service-connected disability
 or disabilities which it is reasonably certain will remain
 throughout such veteran’s lifetime.
     (t) Subject to section 5503(c) of this title, if any veteran,
 as the result of service-connected disability, is in need of
 regular aid and attendance for the residuals of traumatic
 brain injury, is not eligible for compensation under subsec-
 tion (r)(2), and in the absence of such regular aid and at-
 tendance would require hospitalization, nursing home
 care, or other residential institutional care, the veteran
 shall be paid, in addition to any other compensation under
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 BARRY v. MCDONOUGH                                         25



 this section, a monthly aid and attendance allowance equal
 to the rate described in subsection (r)(2), which for pur-
 poses of section 1134 of this title shall be considered as ad-
 ditional compensation payable for disability. An allowance
 authorized under this subsection shall be paid in lieu of any
 allowance authorized by subsection (r)(1).


 

 Special monthly compensation rat-
 ings.
 The rates of special monthly compensation stated in this
 section are those provided under 38 U.S.C. 1114.
      (a) Ratings under 38 U.S.C. 1114(k). Special
 monthly compensation under 38 U.S.C. 1114(k) is payable
 for each anatomical loss or loss of use of one hand, one foot,
 both buttocks, one or more creative organs, blindness of one
 eye having only light perception, deafness of both ears,
 having absence of air and bone conduction, complete or-
 ganic aphonia with constant inability to communicate by
 speech or, in the case of a woman veteran, loss of 25% or
 more of tissue from a single breast or both breasts in com-
 bination (including loss by mastectomy or partial mastec-
 tomy), or following receipt of radiation treatment of breast
 tissue. This special compensation is payable in addition to
 the basic rate of compensation otherwise payable on the
 basis of degree of disability, provided that the combined
 rate of compensation does not exceed the monthly rate set
 forth in 38 U.S.C. 1114(l) when authorized in conjunction
 with any of the provisions of 38 U.S.C. 1114 (a) through (j)
 or (s). When there is entitlement under 38 U.S.C. 1114 (l)
 through (n) or an intermediate rate under (p) such addi-
 tional allowance is payable for each such anatomical loss
 or loss of use existing in addition to the requirements for
 the basic rates, provided the total does not exceed the
 monthly rate set forth in 38 U.S.C. 1114(o). The limitations
 on the maximum compensation payable under this para-
 graph are independent of and do not preclude payment of
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 26                                        BARRY v. MCDONOUGH




 additional compensation for dependents under 38 U.S.C.
 1115, or the special allowance for aid and attendance pro-
 vided by 38 U.S.C. 1114(r).
                             *   *     *
     (f) Intermediate or next higher rate. An interme-
 diate rate authorized by this paragraph shall be estab-
 lished at the arithmetic mean, rounded to the nearest
 dollar, between the two rates concerned.
 (Authority: 38 U.S.C. 1114 (p))
      (1) Extremities.
      (i) Anatomical loss or loss of use of one foot with
      anatomical loss or loss of use of one leg at a level,
      or with complications preventing natural knee ac-
      tion with prosthesis in place, shall entitle to the
      rate between 38 U.S.C. 1114(l) and (m).
      (ii) Anatomical loss or loss of use of one foot with
      anatomical loss of one leg so near the hip as to pre-
      vent use of prosthetic appliance shall entitle to the
      rate under 38 U.S.C. 1114(m).
      (iii) Anatomical loss or loss of use of one foot with
      anatomical loss or loss of use of one arm at a level,
      or with complications, preventing natural elbow ac-
      tion with prosthesis in place, shall entitle to the
      rate between 38 U.S.C. 1114(l) and (m).
      (iv) Anatomical loss or loss of use of one foot with
      anatomical loss or loss of use of one arm so near the
      shoulder as to prevent use of a prosthetic appliance
      shall entitle to the rate under 38 U.S.C. 1114(m).
      (v) Anatomical loss or loss of use of one leg at a
      level, or with complications, preventing natural
      knee action with prosthesis in place with anatomi-
      cal loss of one leg so near the hip as to prevent use
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 BARRY v. MCDONOUGH                                            27



     of a prosthetic appliance, shall entitle to the rate
     between 38 U.S.C. 1114(m) and (n).
     (vi) Anatomical loss or loss of use of one leg at a
     level, or with complications, preventing natural
     knee action with prosthesis in place with anatomi-
     cal loss or loss of use of one hand, shall entitle to
     the rate between 38 U.S.C. 1114 (l) and (m).
     (vii) Anatomical loss or loss of use of one leg at a
     level, or with complications, preventing natural
     knee action with prosthesis in place with anatomi-
     cal loss of one arm so near the shoulder as to pre-
     vent use of a prosthetic appliance, shall entitle to
     the rate between 38 U.S.C. 1114 (m) and (n).
     (viii) Anatomical loss of one leg so near the hip as
     to prevent use of a prosthetic appliance with ana-
     tomical loss or loss of use of one hand shall entitle
     to the rate under 38 U.S.C. 1114(m).
     (ix) Anatomical loss of one leg so near the hip as to
     prevent use of a prosthetic appliance with anatom-
     ical loss or loss of use of one arm at a level, or with
     complications, preventing natural elbow action
     with prosthesis in place, shall entitle to the rate be-
     tween 38 U.S.C. 1114 (m) and (n).
     (x) Anatomical loss or loss of use of one hand with
     anatomical loss or loss of use of one arm at a level,
     or with complications, preventing natural elbow ac-
     tion with prosthesis in place, shall entitle to the
     rate between 38 U.S.C. 1114 (m) and (n).
     (xi) Anatomical loss or loss of use of one hand with
     anatomical loss of one arm so near the shoulder as
     to prevent use of a prosthetic appliance shall enti-
     tle to the rate under 38 U.S.C. 1114(n).
     (xii) Anatomical loss or loss of use of one arm at a
     level, or with complications, preventing natural
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 28                                      BARRY v. MCDONOUGH




      elbow action with prosthesis in place with anatom-
      ical loss of one arm so near the shoulder as to pre-
      vent use of a prosthetic appliance, shall entitle to
      the rate between 38 U.S.C. 1114 (n) and (o).
    (2) Eyes, bilateral, and blindness in connection
 with deafness and/or loss or loss of use of a hand or
 foot.
      (i) Blindness of one eye with 5/200 visual acuity or
      less and blindness of the other eye having only light
      perception will entitle to the rate between 38
      U.S.C. 1114 (l) and (m).
      (ii) Blindness of one eye with 5/200 visual acuity or
      less and anatomical loss of, or blindness having no
      light perception in the other eye, will entitle to a
      rate equal to 38 U.S.C. 1114(m).
      (iii) Blindness of one eye having only light percep-
      tion and anatomical loss of, or blindness having no
      light perception in the other eye, will entitle to a
      rate between 38 U.S.C. 1114 (m) and (n).
      (iv) Blindness in both eyes with visual acuity of
      5/200 or less, or blindness in both eyes rated under
      subparagraph (2) (i) or (ii) of this paragraph, when
      accompanied by service-connected total deafness in
      one ear, will afford entitlement to the next higher
      intermediate rate of if the veteran is already enti-
      tled to an intermediate rate, to the next higher
      statutory rate under 38 U.S.C. 1114, but in no
      event higher than the rate for (o).
      (v) Blindness in both eyes having only light percep-
      tion or less, or rated under subparagraph (2)(iii) of
      this paragraph, when accompanied by bilateral
      deafness (and the hearing impairment in either one
      or both ears is service-connected) rated at 10 or 20
      percent disabling, will afford entitlement to the
      next higher intermediate rate, or if the veteran is
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 BARRY v. MCDONOUGH                                           29



     already entitled to an intermediate rate, to the next
     higher statutory rate under 38 U.S.C. 1114, but in
     no event higher than the rate for (o).
 (Authority: Sec. 112, 

)
     (vi) Blindness in both eyes rated under 38 U.S.C.
     1114 (l), (m) or (n), or rated under subparagraphs
     (2)(i), (ii) or (iii) of this paragraph, when accompa-
     nied by bilaterial deafness rated at no less than 30
     percent, and the hearing impairment in one or both
     ears is service-connected, will afford entitlement to
     the next higher statutory rate under 38 U.S.C.
     1114, or if the veteran is already entitled to an in-
     termediate rate, to the next higher intermediate
     rate, but in no event higher than the rate for (o).
 (Authority: 38 U.S.C. 1114(p))
     (vii) Blindness in both eyes rated under 38 U.S.C.
     1114 (l), (m), or (n), or under the intermediate or
     next higher rate provisions of this subparagraph,
     when accompanied by:
         (A) Service-connected loss or loss of use of
         one hand, will afford entitlement to the
         next higher statutory rate under 38 U.S.C.
         1114 or, if the veteran is already entitled to
         an intermediate rate, to the next higher in-
         termediate rate, but in no event higher
         than the rate for (o); or
         (B) Service-connected loss or loss of use of
         one foot which by itself or in combination
         with another compensable disability would
         be ratable at 50 percent or more, will afford
         entitlement to the next higher statutory
         rate under 38 U.S.C. 1114 or, if the veteran
         is already entitled to an intermediate rate,
         to the next higher intermediate rate, but in
         no event higher than the rate for (o); or
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 30                                     BARRY v. MCDONOUGH




         (C) Service-connected loss or loss of use of
         one foot which is ratable at less than 50
         percent and which is the only compensable
         disability other than bilateral blindness,
         will afford entitlement to the next higher
         intermediate rate or, if the veteran is al-
         ready entitled to an intermediate rate, to
         the next higher statutory rate under 38
         U.S.C. 1114, but in no event higher than
         the rate for (o).
 (Authority: 38 U.S.C. 1114(p))
      (3) Additional independent 50 percent disabili-
 ties. 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 disa-
 bilities independently ratable at 50 percent or more will af-
 ford 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 ana-
 tomical segments or bodily systems from the conditions es-
 tablishing 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 uti-
 lized in this connection, but the permanent residuals of tu-
 berculosis may be utilized.
     (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
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 BARRY v. MCDONOUGH                                          31



 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 subpara-
 graph the single permanent disability independently rata-
 ble 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 provi-
 sions outlined above.
     (i) Where the multiple loss or loss of use entitle-
     ment to a statutory or intermediate rate between
     38 U.S.C. 1114 (l) and (o) is caused by the same eti-
     ological disease or injury, that disease or injury
     may not serve as the basis for the independent 50
     percent or 100 percent unless it is so rated without
     regard to the loss or loss of use.
     (ii) The graduated ratings for arrested tuberculosis
     will not be utilized in this connection, but the per-
     manent residuals of tuberculosis may be utilized.
     (5) Three extremities. Anatomical loss or loss of use,
 or a combination of anatomical loss and loss of use, of three
 extremities shall entitle a veteran to the next higher rate
 without regard to whether that rate is a statutory rate or
 an intermediate rate. The maximum monthly payment un-
 der this provision may not exceed the amount stated in 38
 U.S.C. 1114(p).
Case: 22-1747   Document: 44      Page: 32   Filed: 05/16/2024




    United States Court of Appeals
        for the Federal Circuit
                  ______________________

                   DANIEL D. BARRY,
                    Claimant-Appellant

                             v.

        DENIS MCDONOUGH, SECRETARY OF
               VETERANS AFFAIRS,
                Respondent-Appellee
               ______________________

                        2022-1747
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 20-3367, Judge Grant Jaquith,
 Judge Joseph L. Falvey, Jr, Judge Michael P. Allen.
                 ______________________

 LOURIE, Circuit Judge, dissenting.
     I respectfully dissent. I do so because 

(f)(3), when examined in the context of the regula-
 tion’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 ser-
 vice-connected disabilities or combinations of service-con-
 nected disabilities the veteran may have that are
 independently ratable at 50 percent or higher.
     In construing regulations, plain language is para-
 mount. Goodman v. Shulkin, 

 (Fed.
 Cir. 2017). “If the regulatory language is clear and
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 2                                      BARRY v. MCDONOUGH




 unambiguous, the inquiry ends with the plain meaning.”
 

 As the Veterans Court properly recognized, under
 § 3.350(f)(3), an “additional single permanent disability or
 combinations of permanent disabilities independently rat-
 able at 50 percent or more” will afford entitlement to “the
 next higher intermediate rate” or “the next higher statutory
 rate.” 

(f)(3) (emphases added); see Deci-
 sion, 35 Vet. App. at 122–24. The singular and specific
 terms “the” and “rate” indicate that veterans are afforded
 only a single-half step increase in an SMC rate. Even were
 that language alone not entirely dispositive, a more thor-
 ough consideration of the regulation as a whole, along with
 the statute that it implements, provides meaningful con-
 text.
     As the majority points out, § 3.350(f)(3) implements 

(p), which recites, in part: “in the event the
 veteran’s service-connected disabilities exceed the require-
 ments for any of the rates prescribed in this section, the
 Secretary may allow the next higher rate or an intermedi-
 ate rate, but in no event in excess of $4,667.” 

(p) (emphases added).
     The language of 

(p) indicates that only
 a single rate increase should be available, regardless of the
 number of “disabilities” that exceed the rate requirements.
 As such, § 1114(p) provides a limit to the benefits a veteran
 may receive under this statutory provision, a single rate
 increase, and further evidences that its implementing reg-
 ulation, § 3.350(f)(3), limits veterans to receiving only a
 single half-step increase for any number of “additional sin-
 gle permanent disability or combinations of permanent dis-
 abilities independently ratable at 50 percent or more.” See
 United States v. Vogel Fertilizer Co., 

 (1982)
 (“We consider first whether the Regulation harmonizes
 with the statutory language.”).
    That construction is reinforced by an examination of
 the neighboring subsections of § 1114 and § 3.350,
Case: 22-1747    Document: 44      Page: 34    Filed: 05/16/2024




 BARRY v. MCDONOUGH                                          3



 specifically § 1114(k) and its implementing regulation
 § 3.350(a).    Section 3.350(a) implements 

(k) just as § 3.350(f) implements 38 U.S.C. 1114 (p).
 Section 1114(k) expressly affords veterans multiple in-
 creases in SMC benefits on a per-disability basis, stating
 that “the rate of compensation shall be increased by $96
 per month for each such loss or loss of use, but in no event
 to exceed $4,667 per month.” 

(k) (empha-
 sis added). The statute’s implementing regulation, 

(a), likewise explicitly states that “[s]pecial
 monthly compensation under 1114(k) is payable for each
 anatomical loss” and further explains that “such additional
 allowance is payable for each such anatomical loss.” 

(a) (emphases added). That language stands
 in contrast to the language in § 1114(p) and § 3.350(f)(3).
 Congress could have expressly allowed for multiple half-
 step increases under § 1114(p) had it chosen to.
      The majority attempts to discount that comparison on
 the basis that “for each” lacks the “heft and distinctiveness”
 to warrant a meaningful distinction; however, the majority
 fails to explain how “for each” is so “ubiquitous” or pos-
 sesses “sometimes context-dependent” meaning that would
 warrant disregarding the meaningful distinction it pro-
 vides for each of the relevant provisions. See Maj. Op. at
 15–16 (citing Pulsifer, 144 S. Ct. at 735). In fact, the ma-
 jority goes on to explain the importance of the “for each”
 language to the understanding of § 1114(k). Id. But I con-
 sider it illogical to find that the “for each” language in
 § 1114(k) is meaningful to the understanding of that stat-
 utory provision while the lack of it is meaningless to the
 understanding of § 1114(p). Both of those provisions are
 found in the same statute, and both provisions afford vet-
 erans increases to their SMC benefits based on certain
 types of disabilities. I therefore disagree with the major-
 ity’s discounting of that comparison.
     Furthermore, the majority’s interpretation of
 § 3.350(f)(3) undermines its neighboring subsection
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 4                                       BARRY v. MCDONOUGH




 § 3.350(f)(4), which affords a veteran a full-step increase if
 he or she possesses an additional single permanent disabil-
 ity independently ratable at 100 percent. The majority’s
 interpretation of § 3.350(f)(3) results in an illogical appli-
 cation, as a veteran may be able to obtain higher benefits
 by using multiple half-step increases under § 3.350(f)(3)
 than by meeting the more restrictive requirements for a
 full-step increase under § 3.350(f)(4). See Decision, 35 Vet.
 App. at 123–24.
     In this case, the tools of regulatory construction indi-
 cate that there is a single reasonable meaning of
 § 3.350(f)(3): that a veteran is limited to a single half-step
 increase in SMC benefits, irrespective of how many addi-
 tional single service-connected disabilities or combinations
 of service-connected disabilities are independently ratable
 at 50 percent or higher.
    Accordingly, I would affirm the decision of the Veterans
 Court, which affirmed the decision of the Board, which fol-
 lowed the decision of the regional office.