Citation Nr: 1327907 Decision Date: 08/30/13 Archive Date: 09/24/13 Citation Nr: 1327907 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 05-37 533 ) DATE 30 AUG 2013 ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date earlier than October 9, 2003, for the award of special monthly pension (SMP) based on the need for aid and attendance (A&A). REPRESENTATION Appellant represented by: Mary Anne Royle, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The appellant served on active duty from September 1974 to September 1979. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Phoenix, Arizona, and San Diego, California. The case was subsequently transferred to the RO in Seattle, Washington. In February 2008, the appellant testified at a Board hearing at the Seattle RO. In April 2008, the Board remanded the matter to the RO for due process considerations. In a May 2009 decision, the Board granted an effective date of October 24, 1991 for the award of nonservice-connected pension and an effective date of October 9, 2003 for the award of SMP based on the need for A&A. The appellant appealed the Board's May 2009 decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in February 2010, the appellant's attorney and a representative of VA's General Counsel filed a Joint Motion for Partial Remand. In a March 2010 Order, the Court granted the motion, vacated that portion of the Board's May 2009 decision denying an effective date earlier than October 9, 2003, for the award of SMP based on the need for A&A, and remanded the matter to the Board for readjudication. In accordance with the directives of the joint motion, in July 2010, the Board remanded the matter to the RO for due process considerations, including adjudication of the appellant's allegations of clear and unmistakable error (CUE) in February 1993 and October 1993 rating decisions denying SMP based on the need for A&A. In a March 2011 rating decision, the RO determined that the February 1993 and October 1993 rating decisions were not clearly and unmistakably erroneous in denying SMP based on the need for regular A&A. The appellant and his attorney were duly notified of the RO's decision and his appellate rights. The claims file contains no indication that an appeal of either issue was initiated. Thus, as discussed in the Introduction to its September 2011 decision, the Board found that such issues were not before the Board. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.101, 20.200 (2012) (defining Board's jurisdiction). In its September 2011 decision, the Board denied an effective date earlier than October 9, 2003, for the award of SMP based on the need for A&A. The appellant appealed the Board's September 2011 decision to the Court. In that litigation, while the matter was pending before the Court, in October 2012, the appellant's attorney and a representative of VA's General Counsel filed a Joint Motion for Remand averring that remand was warranted because "the Board erred by failing to adequately explain why it determined that the allegations of [CUE] with regards to the February 1993 and October 1993 rating decisions were not currently before the Board." See Joint Motion at page 2. The Joint Motion directed that the Board should provide an adequate statement of the reasons or bases for its implicit determination that it lacked jurisdiction over CUE issues, in light of the February 2010 joint motion, the July 2010 Board remand instructions, and treatment of the effective date issue and the CUE challenges in the RO's May 2011 supplemental statement of the case (SSOC). Id. at 4-5. In an October 2012 Order, the Court granted the motion, vacated the Board's September 2011 decision denying an effective date earlier than October 9, 2003, for the award of SMP based on the need for A&A, and remanded the matter to the Board for readjudication. In March 2013, the Board remanded the Veteran's claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. As outlined in the decision below, a motion filed by the appellant's attorney to vacate the Board's March 2013 remand is granted with respect to the issue of entitlement to an effective date earlier than October 9, 2003, for the award of SMP based on the need for A&A. The matter of entitlement to an effective date earlier than October 9, 2003, for the award of SMP based on the need for A&A is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDINGS OF FACT 1. In a March 2011 rating decision, the RO found that there was no CUE in the February and October 1993 rating decisions that denied SMP based on the need for regular A&A. The Veteran was notified in writing of the RO's determination and his appellate rights. In an April 25, 2011 letter to the RO, the Veteran's attorney argued that the March 2011 rating decision was "incorrect." 2. In its March 25, 2013 remand, the Board noted that the record contained no indication that an appeal of either issue denied in the March 2011 rating decision was initiated by the Veteran, and found that such CUE issues were not before the Board. 3. The April 25, 2011 letter to the RO from the Veteran's attorney was not associated with the claims file at the time of the Board's March 2013 Remand. CONCLUSION OF LAW The motion requesting vacatur of the Board's March 25, 2013 remand with respect to the claim of entitlement to an effective date earlier than October 9, 2003 for the award of SMP based on the need for A&A is granted. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.904 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.904. In July 2010, the Board remanded the Veteran's claim for an effective date earlier than October 9, 2003, for the grant of SMP based on the need for A&A to the RO for due process considerations including his allegations of CUE in the February and October 1993 rating decision that denied SMP based on the need for A&A. In the March 2011 rating decision, the RO determined that the February and October 1993 rating decisions were not clearly and unmistakably erroneous. In its March 25, 2013 remand, the Board noted that the record contained no indication that an appeal of either issue was initiated and found that such CUE issues were not before the Board. Included, however, with the April 2013 motion to vacate is a copy of an April 25, 2011 letter to the RO in which the appellant's attorney argued that the March 2011 decision was "incorrect." Here, the Board finds that its remand of the Veteran's claim in March 2013 was based on an inaccurate record, and resulted in a denial of due process of law. Accordingly, the March 25, 2013 Board remand, as to the issue of entitlement to an effective date earlier than October 9, 2003, for the grant of SMP based on the need for A&A, is vacated. ORDER The motion requesting vacatur of the Board's March 25, 2013 Remand, with respect to the issue of entitlement to an effective date earlier than October 9, 2003, for the award of SMP based on the need for A&A is granted. REMAND The record suggests that there is evidence at the RO that is not currently in the claims file that affects the disposition of the Veteran's appeal for an effective date earlier than October 9, 2003, for the award of SMP based on the need for A&A. The March 2011 rating decision did not find CUE in the February and October 1993 rating decisions that denied entitlement to SMP based on the need for A&A. The claims file does not currently contain any indication that the Veteran initiated an appeal of either issue. With the April 2013 motion to vacate, however, the Veteran's attorney submitted a copy of an April 25, 2011 letter to the RO. In that letter, the attorney argued that the medical evidence showed that, since 1991, the Veteran met the requirements for A&A, and that the March 2011 rating decision was "incorrect." It is unclear to the Board when the RO received the attorney's letter. If it was received within one year of notice of the March 2011 rating decision, the attorney's letter could be considered a timely notice of disagreement (NOD) and the Board would have jurisdiction of these matters. 38 C.F.R. §§ 20.200, 20.201, 20.302 (2012). See, e.g., Manlincon v. West, 12 Vet. App. 238 (1998) (where there is an NOD, the Board has jurisdiction, and next step is a statement of the case). Thus, all evidence received by the RO since the March 2011 rating decision regarding the claim on appeal for an effective date earlier than October 9, 2003, for the grant of SMP based on the need for A&A must be associated with the claims file. Further, in a January 2013 written statement, the appellant's attorney seemed to raise new claims of CUE that may directly impact on the earlier effective date appeal currently before the Board. The attorney argued that a July 1998 rating decision that granted SMP based on housebound status but denied A&A was clearly and unmistakably erroneous. See January 2013 written statement from appellant's attorney at page 15. The attorney also contended that there was "CUE in all previous RO's decisions denying the October, 1991 effective date." Id. From that statement, alone, it was unclear to the Board what the appellant's attorney was alleging and what new claims she was raising, if any. In the April 2013 motion to vacate, the attorney argued that her January 2013 letter was not vague and alleged CUE in "the decision[s] from 1993, 1996 and 1998." The attorney provided a copy of a May 11, 2011 letter to the RO in which she specifically alleged CUE in the January 25, 1997 rating decision (that denied entitlement to SMP and found that SMP based on the need for A&A was not established by the evidence of record) and the July 14, 1998 rating decision that denied entitlement to SMP based on the need for A&A. The attorney alleged CUE in the 1997 and 1998 decisions "denying the [V]eteran's claims for [A&A]." It is unclear to the Board to what 1996 decision the Veteran's attorney refers in alleging CUE. The attorney argued that the RO's "decisions from 1993 to 2003 contained CUE." The appellant's challenge to the January 1997 and July 1998 rating decisions denying entitlement to SMP, and SMP based on the need for A&A, respectively, have not been specifically adjudicated by the RO. The pending CUE claims are inextricably intertwined with the issue of entitlement to an effective date earlier than October 9, 2003, for the award of SMP based on the need for A&A. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Because the RO has not yet had the opportunity to address the CUE claims in full, the Board must defer consideration of the earlier effective date appeal, pending the RO's consideration of the CUE claims in the first instance (other than the claims pertaining to the February and October 1993 rating decisions). See Huston v. Principi, 18 Vet. App. 395, 402-03 (2004). Accordingly, the case is REMANDED for the following action: 1. The RO should associate with the claims file all evidence in its possession regarding the claim for an effective date earlier than October 9, 2003, for the grant of special month pension based on the need for aid and attendance currently on appeal. 2. Contact the appellant's attorney in writing and request that she clarify with specificity the arguments raised in her January 2013 written statement. The attorney should clarify the specific rating decisions allegedly containing CUE and the specific bases for her CUE allegations (other than the February and October 1993 and the January 1997 and July 1998 rating decisions). 3. The RO should adjudicate the appellant's claims of whether there was clear and unmistakable error in the January 1997 rating decision that denied entitlement to special monthly pension (and found that special monthly pension based on the need for aid and attendance was not established by the evidence of record) and the July 1998 rating decision that denied entitlement to special monthly pension based on the need for aid and attendance. If the determination is adverse to the appellant, the RO should readjudicate the issue of entitlement to an effective date earlier than October 9, 2003, for the award of special monthly pension based on the need for aid and attendance, considering all the evidence of record. The appellant and his attorney should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Citation Nr: 1310031 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 05-37 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date earlier than October 9, 2003, for the award of special monthly pension (SMP) based on the need for aid and attendance (A&A). REPRESENTATION Appellant represented by: Mary Anne Royle, Esq. WITNESSES AT HEARING ON APPEAL Appellant and C.H. ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The appellant served on active duty from September 1974 to September 1979. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Phoenix, Arizona, and San Diego, California. The case was subsequently transferred to the RO in Seattle, Washington. In February 2008, the appellant testified at a Board hearing at the Seattle RO. In April 2008, the Board remanded the matter to the RO for due process considerations. In a May 2009 decision, the Board granted an effective date of October 24, 1991 for the award of nonservice-connected pension and an effective date of October 9, 2003 for the award of SMP based on the need for A&A. The appellant appealed the Board's May 2009 decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in February 2010, the appellant's attorney and a representative of VA's General Counsel filed a Joint Motion for Partial Remand. In a March 2010 Order, the Court granted the motion, vacated that portion of the Board's May 2009 decision denying an effective date earlier than October 9, 2003, for the award of SMP based on the need for A&A, and remanded the matter to the Board for readjudication. In accordance with the directives of the joint motion, in July 2010, the Board remanded the matter to the RO for due process considerations, including adjudication of the appellant's allegations of clear and unmistakable error (CUE) in February 1993 and October 1993 rating decisions denying SMP based on the need for A&A. In a March 2011 rating decision, the RO determined that the February 1993 and October 1993 rating decisions were not clearly and unmistakably erroneous in denying SMP based on the need for regular A&A. The appellant and his attorney were duly notified of the RO's decision and his appellate rights. The record contains no indication that an appeal of either issue was initiated. Thus, as discussed in the Introduction to its September 2011 decision, the Board found that such issues were not before the Board. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.101, 20.200 (2012) (defining Board's jurisdiction). In its September 2011 decision, the Board denied an effective date earlier than October 9, 2003 for the award of SMP based on the need for A&A. The appellant appealed the Board's September 2011 decision to the Court. In that litigation, while the matter was pending before the Court, in October 2012, the appellant's attorney and a representative of VA's General Counsel filed a Joint Motion for Remand averring that remand was warranted because "the Board erred by failing to adequately explain why it determined that the allegations of [CUE] with regards to the February 1993 and October 1993 rating decisions were not currently before the Board." See Joint Motion at page 2. The Joint Motion directed that the Board should provide an adequate statement of the reasons or bases for its implicit determination that it lacked jurisdiction over CUE issues, in light of the February 2010 joint motion, the July 2010 Board remand instructions, and treatment of the effective date issue and the CUE challenges in the RO's May 2011 supplemental statement of the case (SSOC). Id. at 4-5. In an October 2012 Order, the Court granted the motion, vacated the Board's September 2011 decision denying an effective date earlier than October 9, 2003 for the award of SMP based on the need for A&A, and remanded the matter to the Board for readjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In a January 2013 written statement, the appellant's attorney now appears to raise new claims of CUE that may directly impact on the earlier effective appeal currently before the Board. The Board recognizes that, in light of the October 2012 Joint Motion (and notwithstanding the appellant's failure to initiate an appeal of the March 2011 rating decision finding that the February 1993 and October 1993 rating decisions were not clearly and unmistakably erroneous in denying SMP based on the need for regular A&A), it must address the matter of whether there was CUE in the 1993 rating decisions in adjudicating the appellant's earlier effective date claim now on appeal. But see 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.101, 20.200 (defining Board's jurisdiction). In the January 2013 written statement, however, the appellant's attorney now argues that a July 1998 rating decision that granted special monthly pension based on housebound status but denied aid and attendance was clearly and unmistakable erroneous. See January 2013 written statement from appellant's attorney at page 15. The attorney also contends that there was "CUE in all previous RO's decisions denying the October, 1991 effective date." Id. It is unclear to the Board what the appellant's attorney is alleging and what new claims she may be raising, if any. In Fugo v. Brown, 6 Vet. App. 40, 43 (1993), the Court stated that "CUE is a very specific and rare kind of 'error.' It is the kind of error, of fact or of 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 . . . ." The Court continued to state that: [i]f a claimant-appellant wishes to reasonably raise clear and unmistakable error there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a clear and unmistakable error claim is undoubtedly a collateral attack, the presumption is even stronger. Id. at 44. See Grover v. West, 12 Vet. App. 109, 111-112 (1999); Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994); Damrel v. Brown, 6 Vet. App. 242, 245 (1994). See also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). In light of the attorney's rather vague claim of CUE "in all previous RO's decisions denying the October, 1991 effective date," the Board is currently unable to adjudicate the appellant's claim for an effective date earlier than October 9, 2003, for the award of SMP based on the need for A & A. On remand, the appellant's attorney should be asked to clarify her allegation of CUE in the prior rating decisions. The RO must be afforded the opportunity to address them in full, and the Board must defer consideration of the earlier effective date appeal pending the RO's consideration of any new CUE claims in the first instance (other than the claims pertaining to the February and October 1993 rating decisions). Accordingly, the case is REMANDED for the following action: 1. Contact the appellant's attorney in writing and request that she clarify with specificity the arguments raised in her January 2013 written statement. The attorney should clarify the specific rating decisions allegedly containing CUE and the specific bases for her CUE allegations. 2. The RO should review any response received from the appellant's attorney and then adjudicate any new claim(s) of clear and unmistakable error in an RO rating decision. If the determination remains adverse to the appellant, the RO should readjudicate the issue of entitlement not an effective date earlier than October 9, 2003, for the award of special monthly pension based on the need for aid and attendance, considering all the evidence of record. The appellant and his attorney should be furnished an appropriate SSOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).