Citation Nr: 0900838	
Decision Date: 01/08/09    Archive Date: 01/14/09

DOCKET NO.  01-02 686A	)	DATE
	)
	)


THE ISSUE

Whether there was clear and unmistakable error (CUE) in a May 
1989 decision of the Board of Veterans' Appeals, which denied 
restoration of special monthly compensation based on the need 
for regular aid and attendance of another person.

(The issues of special monthly compensation based on the need 
for regular aid and attendance of another person, with an 
effective date of October 1, 1988; special monthly 
compensation on the basis of incomplete paraplegia, with an 
effective date of January 1, 1980; and an effective date of 
January 1, 1980 for special monthly compensation based on 
loss of use of the left lower extremity, will be addressed in 
a separate decision.)  


REPRESENTATION

Moving party represented by:  Paralyzed Veterans of America, 
Inc.


ATTORNEY FOR THE BOARD

Debbie A. Riffe, Counsel



INTRODUCTION

The veteran, who is the moving party, served on active duty 
from July 1967 to February 1969.  

This matter comes to the Board as an original action on the 
motion of the moving party alleging CUE in a May 1989 Board 
decision, which denied restoration of special monthly 
compensation based upon the need for regular aid and 
attendance.  It is before the undersigned Veterans Law Judge 
who has been designated to make the final disposition of this 
motion for VA.  


FINDINGS OF FACT

1.  At the time of the Board decision in May 1989, the 
evidence demonstrated that the veteran required the 
adjustment of a special orthopedic appliance which by reason 
of the particular disability cannot be done without such aid.  

2.  The May 1989 Board decision was undebatably erroneous, 
and based on the evidence of record and law as then in 
effect, the correct decision at that time is that special 
monthly compensation based upon the need for aid and 
attendance should be restored.  


CONCLUSION OF LAW

The May 1989 Board decision, denying restoration of special 
monthly compensation based on the need for regular aid and 
attendance, contains CUE and is reversed.  38 U.S.C.A. § 
314(l) (1988); 38 C.F.R. §§ 3.350(b), 3.352(a) (1988); 38 
U.S.C.A. §§ 1114(l), 7111 (West 2002); 38 C.F.R. §§ 3.350(b), 
3.352(a), 20.1403 (2008).




The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented in part at 38 C.F.R § 3.159, amended VA's duties 
to notify and to assist a claimant in developing information 
and evidence necessary to substantiate a claim.

In a claim of CUE, the duties to notify and assist contained 
in the VCAA are not applicable.  Specifically, determinations 
as to the existence of clear and unmistakable error are based 
on the facts of record at the time of the decision 
challenged, such that no further factual development would be 
appropriate. Livesay v. Principi, 15 Vet. App. 165, 178-79 
(2001) (en banc).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Principles of CUE

Effective November 21, 1997, the provisions of Pub. L. No. 
105-111, 111 Stat. 2271 (codified at 38 U.S.C.A. § 7111 (West 
2002)) permit challenges to decisions of the Board on the 
grounds of CUE.

The final regulations amending the Rules of Practice before 
the Board were promulgated and became effective on February 
12, 1999, providing for procedures to challenge prior Board 
decisions on the basis of CUE.  64 Fed. Reg. 2134-2141 (1999) 
(codified at 38 C.F.R. § 20.1400 et. seq. (2008)).

A final Board decision may be revised or reversed on the 
grounds of CUE by the Board on its own motion, or upon 
request of a moving party at any time after the decision is 
made.  38 U.S.C.A. §§ 5109A(a), 7111(a) and (c) (West 2002).

It is apparent that Congress, in creating § 7111, intended VA 
to follow the established case law defining a viable claim of 
CUE.  64 Fed. Reg. 2134, 2137 (1999); Donovan v. West, 158 
F.3d 1377, 1382-83 (Fed. Cir 1998).  This case law is found 
primarily in the following precedent opinions of the United 
States Court of Appeals for Veterans Claims (Court):  Russell 
v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. 
Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 
(1993), en banc review denied, 6 Vet. App. 162 (1994); 
Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 
Vet. App. 377 (1994); Crippen v. Brown, 9 Vet. App. 412 
(1996); and Berger v. Brown, 10 Vet. App. 166 (1997).

CUE is defined as the kind of error, of fact or law, that 
when called to the attention of later reviewers compels the 
conclusion, to which reasonable minds could not differ, that 
the result would have been manifestly different but for the 
error; generally, either the correct facts, as they were 
known at the time, were not before the Board, or the 
statutory and regulatory provisions extant at the time were 
incorrectly applied.  38 C.F.R. § 20.1403(a).  A review for 
CUE in a prior Board decision must be based on the record and 
the law as it existed when that decision was made.  38 C.F.R. 
§ 20.1403(b).

To warrant revision of a Board decision on the grounds of 
CUE, there must have been an error in the Board's 
adjudication of the appeal which, had it not been made, would 
have manifestly changed the outcome.  If it is not absolutely 
clear that a different result would have ensued, the error 
complained of cannot be clear and unmistakable.  38 C.F.R. § 
20.1403(c).

CUE does not include a change in medical diagnosis that 
"corrects" an earlier diagnosis considered in a Board 
decision, VA's failure to fulfill the duty to assist, or a 
disagreement as to how the facts were weighed or evaluated.  
38 C.F.R. § 20.1403(d).  CUE does not include the otherwise 
correct application of a statute or regulation where, 
subsequent to the Board decision challenged, there has been a 
change in the interpretation of the statute or regulation.  
38 C.F.R. § 20.1403(e).  Further, the doctrine of the 
favorable resolution of reasonable doubt is not applicable in 
determinations of whether a prior Board decision contains 
CUE.  38 C.F.R. § 20.1411(a) (2008).

As a threshold matter, a claimant must plead CUE with 
particularity.  Only if this threshold requirement is met 
does the Board have any obligation to address the merits of 
the CUE claim.  See Phillips v. Brown, 10 Vet. App. 25 (1997) 
(distinguishing denial of CUE due to pleading deficiency and 
denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 
(1995).

Factual Background

The moving party served on active duty from July 1967 to 
February 1969.  He served in combat in Vietnam and was 
awarded the Purple Heart for massive, severe injuries to the 
back and buttocks secondary to a probable mine explosion in 
June 1968.  In an April 1969 rating decision, the RO granted, 
among other things, special monthly compensation under 38 
U.S.C. § 314(r) [now codified at 38 U.S.C.A. § 1114(r)] on 
account of loss of use of both lower extremities and being in 
need of regular aid and attendance.  Later, in an October 
1979 rating decision, the RO indicated that VA examination 
showed the veteran's condition had improved somewhat, and 
reduced his award to special monthly compensation under 38 
U.S.C. § 314(s) [now codified at 38 U.S.C.A. § 1114(s)] on 
account of colostomy rated at 100 percent and additional 
service-connected disabilities independently ratable at 60 
percent or more.  The veteran appealed this decision to the 
Board.  

In a September 1982 decision, the Board determined in part 
that the veteran's profound and multiple service-connected 
disabilities required that he have the regular assistance of 
another person with many of the personal, self-care tasks 
involved in daily living.  The Board concluded that special 
monthly compensation on account of the veteran's need for 
regular aid and attendance under 38 U.S.C. § 314(l) [now 
codified at 38 U.S.C.A. § 1114(l)] and 38 C.F.R. § 3.352(a) 
was warranted.  In an October 1982 rating decision, the RO 
implemented the Board's decision, assigning special monthly 
compensation at the "l" rate from January 1, 1980.  The 
veteran appealed the RO's assignment, and in an August 1985 
decision, the Board denied an increased rate of special 
monthly compensation.  

In a July 1988 rating decision, the RO reduced the veteran's 
award of special monthly compensation based on the need for 
aid and attendance, to be effective October 1, 1988.  The RO 
stated that the evidence of record no longer showed that the 
veteran was in need of aid and attendance.  The veteran 
appealed this decision to the Board.  In a May 1989 decision, 
the Board concluded that the veteran did not require the 
regular aid and attendance of another individual, and thus 
special monthly compensation on that basis was denied.  In so 
deciding, the Board made the following findings of fact:  

1.  The veteran served on active duty 
from July 1967 to February 1969.

2.  The veteran requires assistance in 
tying his left shoelaces and adjusting 
his left knee brace.  

3.  The veteran is able to walk several 
blocks without the assistance of another 
person, is able to dress and undress 
himself, is able to shave and shower 
without assistance, is able to attend to 
the maintenance of a colostomy bag and 
urinary tract bag without assistance, and 
is able to cope well on a regular basis 
with any hazards or dangers incident to 
his daily environment.  

In its discussion, the Board cited to a May 1988 VA 
examination and testimony of the veteran and his wife.  At 
the time of the May 1988 examination, the veteran's gait was 
slow and he dragged his left leg due to internal rotation due 
to severe degeneration of the left knee.  He needed the use 
of a rigid brace to be able to ambulate.  He needed 
assistance tying left shoelaces.  A colostomy bag and 
external catheter with a bag were in place.   The examiner 
opined that the veteran did not require daily skilled 
services at present.  The veteran's wife testified that she 
helped the veteran daily, to include tying his left shoelaces 
and adjusting his knee brace.  In its decision, the Board 
also indicated that "when the veteran's overall condition is 
considered, he is able to perform most personal functions 
without the assistance of another person."  

In July 2008 the veteran's representative filed a motion for 
revision or reversal of the May 1989 Board decision.  The 
representative argued, among other things, that the Board 
incorrectly applied the statutory and regulatory provisions 
extant at the time.  The representative stated that there was 
no dispute as to the facts and law before the Board in May 
1989, but claimed that the Board incorrectly applied the law 
to the facts, particularly with regard to the aid and 
attendance criteria of frequent need of adjustment of any 
special prosthetic or orthopedic appliances which cannot be 
done without aid, and of inability to attend to the wants of 
nature.  

Analysis

The question before the Board is whether the May 1989 
decision of the Board contained CUE in denying restoration of 
special monthly compensation based on the need for aid and 
attendance, which had been severed by the July 1988 RO rating 
decision.  The veteran appealed the July 1988 RO decision to 
the Board.  

After a careful review of the record, the Board finds that 
the May 1989 Board decision contains CUE.  That is, the 
Board's determination in 1989 that the veteran does not 
require the regular aid and attendance of another individual 
contains CUE, for the reasons that follow.  

The applicable criteria extant in 1989 were essentially the 
same as they are today.  Special monthly compensation is 
payable if as the result of service-connected disability, the 
veteran ... is so helpless as to be in need of regular aid and 
attendance of another person.  38 U.S.C. § 314(l) (1988); 38 
C.F.R. § 3.350(b) (1988); 38 U.S.C.A. § 1114(l) (West 2002); 
38 C.F.R. § 3.350(b) (2008).  

Need for aid and attendance means being so helpless as to 
require the regular aid and attendance of another person.  38 
U.S.C.A. § 3.350(b) (1988).  As it pertains to the present 
case, criteria for establishing such need include whether the 
veteran is so helpless as to be in need of regular aid and 
attendance as determined under criteria enumerated under 38 
C.F.R. § 3.352(a).  The following factors will be accorded 
consideration in determining whether the veteran is in need 
of regular aid and attendance of another person:

(1) the inability of the veteran to dress 
or undress himself, or to keep himself 
ordinarily clean and presentable;

(2) frequent need of adjustment of any 
special prosthetic or orthopedic 
appliances which by reason of the 
particular disability cannot be done 
without such aid;

(3) inability of the veteran to feed 
himself because of the loss of 
coordination of upper extremities or 
because of extreme weakness;

(4) inability to attend to the wants of 
nature; or incapacity, physical or 
mental, which requires care or assistance 
on a regular basis to protect the veteran 
from the hazards or dangers incident to 
his daily environment.

38 C.F.R. § 3.352(a) (1988).

It is not required that all of the disabling conditions 
enumerated in 38 C.F.R. § 3.352(a) be found to exist before a 
favorable rating may be made.  The particular personal 
functions which the veteran is unable to perform should be 
considered in connection with his condition as a whole.  It 
is only necessary that the evidence establish that the 
veteran is so helpless as to need regular aid and attendance, 
not that there be a constant need, and that determinations of 
helplessness for aid and attendance purposes must be based on 
the actual requirement of personal assistance from others.  
38 C.F.R. § 3.352(a).  

In this case, the evidence shows that the veteran underwent a 
VA examination for purposes of regular aid and attendance in 
May 1988.  Despite numerous disabilities, it was found that 
the veteran did not require "daily skilled services" of 
another at present.  The applicable criteria, however, 
requires only that the aid and attendance involve the 
"personal assistance," not the "skilled" services, of 
another individual.  The examiner noted among other things 
that the veteran needed the assistance to tie his left 
shoelaces.  It was also noted that he required the use of a 
rigid brace to be able to ambulate, as the left lower 
extremity was internally rotated due to severe degenerative 
of the left knee.  In the diagnoses, the examiner included 
severe ankylosis of the left hip with severe limitation of 
movements and status post fusion of the lumbosacral spine 
with severe limitation of motion.  

At the time of a September 1988 hearing, the veteran 
testified that due to his fused left hip he could not reach 
his left knee brace and needed assistance in putting it on 
and taking it off.  He also noted that someone had to help 
him in tying his left shoelaces.  He stated that his wife 
helped him on a daily basis.  

According to applicable regulations extant in 1989, the 
particular personal functions that the veteran is unable to 
perform should be considered in connection with his condition 
as a whole and it was only necessary that the evidence 
establish that the veteran is so helpless as to need regular 
aid and attendance, not that there be a constant need.  One 
factor for consideration is frequent need of adjustment of 
any special prosthetic or orthopedic appliances which by 
reason of the particular disability cannot be done without 
such aid.  This provision is directly applicable to the 
veteran's left knee brace, which is a required orthopedic 
appliance and which the evidence clearly indicates that the 
assistance of another is required for its adjustment (putting 
on and taking off).  

In its May 1989 decision, the Board concluded, in light of 
all the accumulated evidence, that the veteran did not 
require regular aid and assistance of another individual.  In 
its discussion, however, the Board in 1989 stated that the 
evidence of record showed that he was able to perform "most 
personal functions" without assistance, specifically 
singling out the requirement for assistance in tying his left 
shoelaces and adjusting a left knee brace.  This finding and 
the conclusion are at odds, and the Board did not reconcile 
this finding with the aid and attendance criterion of 
frequent need of adjustment of any special orthopedic 
appliances which by reason of the particular disability 
cannot be done without such aid.  Rather, it appears that the 
Board in 1989 ignored this particular need for assistance of 
the veteran and instead focused on consideration of his 
"overall condition."  This is clearly and undebatably 
erroneous.  Given the severity of his disabilities, the 
veteran had adapted to his daily environment in a remarkable 
manner, but he still needed the assistance of another to tie 
left shoelaces and adjust his left knee brace, due to his 
left hip and lower back conditions.  The Board in fact 
acknowledged this and made a specific finding as to such 
need.  The evidence of record in 1989 clearly showed this 
need, yet the Board concluded that it was not demonstrated 
that the veteran required the assistance of another 
individual on a regular basis.  
 
Therefore, the Board's May 1989 decision, which denied 
restoration of special monthly compensation based on the need 
for regular aid and attendance, was an improper application 
of the governing law and regulations in existence at that 
time.  

Thus, as has been discussed hereinabove, the Board finds that 
the veteran's need for assistance with his left shoe and knee 
brace, to help him to ambulate, meets the criteria of a 
frequent need of adjustment of any special prosthetic or 
orthopedic appliances which by reason of the particular 
disability cannot be done without such aid.  For the Board in 
May 1989 to have decided that the veteran did not require the 
assistance of another individual on a regular basis, while 
specifically finding that he required assistance in tying 
left shoelaces and adjusting a left knee brace, is 
undebatable error.  If the Board had correctly applied the 
pertinent laws and regulations in existence in 1989, the 
decision would have been manifestly different.  

The Board notes that the moving party has argued other bases 
of CUE in the 1989 Board decision, to include the contention 
that the veteran's clearly demonstrated loss of bladder and 
bowel control met the criterion for aid and attendance 
pertaining to inability to attend to the wants of nature.  
The representative called the Board's attention to a January 
1979 Board request for an opinion from VA General Counsel 
concerning the interpretation of regulations and whether a 
veteran with paralysis of both lower extremities and with 
loss of anal and bladder sphincter control was equivalent to 
need for regular aid and attendance, as the veteran was 
unable to attend to the wants of nature.  General Counsel 
responded in March 1979 and subsequently furnished a 
clarifying opinion to the effect that the regulation of 38 
C.F.R. § 3.350(e)(1) [now 38 C.F.R. § 3.350(e)(2)] assumes 
that "helplessness" results from loss of anal and bladder 
control and provides that the requirement is met even when 
incontinence is overcome through rehabilitation.  In short, 
the Board rejects this basis of CUE, because the 
circumstances of the opinion request is distinguishable from 
the circumstances of the veteran in this case.  The opinion 
request arose out of interpretation of regulations for 
purposes of 38 U.S.C.A. § 314(o) [now 38 U.S.C.A. § 1114(o)] 
where the veteran had paralysis of both lower extremities and 
loss of anal and bladder sphincter control, whereas the 
veteran in this case was not shown to have paralysis of both 
lower extremities and was not in receipt of special monthly 
compensation at the 38 U.S.C. § 314(o) level.  

Nevertheless, as explained above, based on the evidence of 
record and the law as then in effect, the May 1989 Board's 
decision was undebatably erroneous.  Instead, the correct 
decision at that time should have reflected that the veteran 
was in need of regular aid and attendance, thus restoring 
special monthly compensation on that basis.

In sum, it is found that the statutory or regulatory 
provisions extant at the time were incorrectly applied by the 
Board when in May 1989 it denied restoration of special 
monthly compensation based on the need for aid and 
attendance.  Therefore, the motion for reversal of that 
decision is granted.  


ORDER

As there was CUE in the May 1989 Board decision which denied 
restoration of special monthly compensation based on the need 
for regular aid and attendance, the motion for reversal of 
that decision is granted.  



                       
____________________________________________
	V. L. JORDAN
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs