Citation Nr: 1735560	
Decision Date: 08/28/17    Archive Date: 09/06/17

DOCKET NO.  15-18 920	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Whether a February 24, 2015 Board decision contains clear and unmistakable error (CUE) in denying entitlement to SMC based on housebound status from June 1, 2007 to December 31, 2008.

(The issue of entitlement to an increased rating for residuals of transient ischemic attack after October 1, 2014 is addressed in a separate Board decision.)


ATTORNEY FOR THE BOARD

A.Lech, Associate Counsel 


INTRODUCTION

The moving party (Veteran) served on active duty from December 1986 to October 1992.
This matter comes before the Board from a March 11, 2015 motion by the Veteran requesting revision of the February 2015 Board decision on the basis of CUE.


FINDING OF FACT

There is no outcome determinative error of fact or law in the Board's February 2015 decision denying entitlement to SMC based on housebound status.


CONCLUSION OF LAW

The February 24, 2015 Board decision denying SMC based on housebound status is not clearly and unmistakably erroneous.  38 U.S.C.A. § 7111(West 2014); 38 C.F.R. §§ 20.1400-20.1411 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board finds that the statutory and regulatory provisions pertaining to VA's duties to notify and assist a claimant do not apply to allegations of CUE in prior decisions of the Board.  A CUE motion is not a claim or an appeal, but is a collateral attack upon a previous final decision.  Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc); Simmons v. Principi, 17 Vet. App. 104, 109   (2003). 

The Veteran contends that a February 24, 2015 decision of the Board contains CUE in its denial of SMC based on housebound status.  

Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411 (2016).

Such a motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.  Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy that requirement.  Motions which fail to comply with the regulatory requirements shall be dismissed, without prejudice to refiling.  38 C.F.R. § 20.1404 (b) (2016).  The Board finds that the Veteran's motion for CUE, documented in the March 11, 2015 statement/motion, was made with the requisite specificity. 

The Board notes that it has original jurisdiction to determine whether CUE exists in a prior final Board decision.  38 C.F.R. § 20.1400 (2016).  Section § 20.1403(a) provides that CUE is a very specific and rare kind of error.  It is the kind of error of fact or law which, 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.  See 38 C.F.R. § 20.1403 (a) (2016).

The review for CUE in a prior Board decision must be based on the record and the law which existed when that decision was made.  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 that, had it not been made, would have manifestly changed the outcome when it was made.  If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE.  See 38 C.F.R. § 20.1403 (b), (c).

The following situations do not constitute CUE: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) VA failure to fulfill the duty to assist; (3) a disagreement as to how the facts were weighed or evaluated; and (e) 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 pertinent statute or regulation.  38 C.F.R. § 20.1403 (d)-(e) (2016).  See also 38 U.S.C.A. §§ 501 (a), 7111 (West 2014).
In this case, the Veteran contends that the Board committed CUE in its February 24, 2015 decision when it denied SMC housebound criteria from June 2007 to December 31, 2008 (here, the Board notes that while the Veteran expressed that November 2008 was the date he was claiming, the period has been characterized elsewhere as December 31, 2008, and the Board will take that period into consideration here, as it is the most generous reading of the claim to the Veteran).

In his March 2015 CUE statement, the Veteran has also asserted that VA never provided him the requisite evaluation for his ischemic stroke during the period from June 2007 to November 2008, which made it impossible to conclusively state if the criterion for SMC was met.  

In essence, the Veteran contends that the correct facts were not before the Board.  The Veteran also contends that this error is outcome determinative as, had he been given a VA examination for his transient ischemic attacks (TIA), the evidence obtained from the examination would have showed that he deserved a 100 percent disability rating for the period in question which, in turn, would have qualified him for SMC.

After review of the evidence, the Board finds that the February 2015 Board decision considered all the evidence identified by the Veteran.

The law in effect at the time of the February 2015 Board decision provided that Diagnostic Code 8008 applies to thrombosis of the brain vessels.  See 38 C.F.R. § 4.124a.  Hemorrhage from the brain vessels is rated under Diagnostic Code 8009.  See id.  Both of these diagnostic codes, along with DC 8007 for embolisms, provide an initial six month total (100 percent) rating, followed by a rating based on residuals with a 10 percent minimum rating.  38 C.F.R. § 4.124a, DCs 8007, 8008, 8009.  Determinations as to the presence of residuals not capable of objective verification must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease.  38 C.F.R. § 4.124a, Diagnostic Code 8008, Note.  It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses.  Id.

Based on that criteria, and on the extensive analysis of the voluminous medical records in evidence, the Board concluded that no new embolism, thrombosis, or hemorrhage of the brain vessels during the relevant period (the analysis of the medical evidence in the February 2015 Board decision is incorporated therein).  Thus, a 100 percent rating was not warranted for the period under consideration.  See 38 C.F.R. § 4.124a, DC 8007-8009.

In order to qualify for SMC at the housebound rate, the Veteran must have a single service-connected disability rated 100 percent and either: (1) has an additional service-connected disability or disabilities ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of a service-connected disability or disabilities.  Permanently housebound means the Veteran is substantially confined, as a direct result of a service-connected disability or disabilities, to his dwelling or the immediate premises (or, if institutionalized, to the ward or clinical areas), and it is reasonably certain that the service-connected disability or disabilities and resultant confinement will continue throughout his lifetime.  38 U.S.C.A. § 1114 (s) (West 2014); 38 C.F.R. § 3.350 (i) (2016).

During the time frame at issue, from June 1, 2007, to December 31, 2008, the Veteran was service connected for lumbosacral strain (40 percent), lumbar radiculopathy with gastrocnemius atrophy of the left lower extremity (10 percent prior to August 21, 2007 and 30 percent thereafter), lumbar radiculopathy with gastrocnemius atrophy of the right lower extremity (10 percent), hepatitis B (30 percent), chronic cervical strain (30 percent), cervical radiculopathy or the right upper extremity (30 percent), cervical radiculopathy or the left upper extremity (20 percent), hypertension with hypertensive retinopathy (10 percent), hypertensive cardiovascular disease (30 percent), erectile dysfunction associated with hypertension (0 percent), gastric ulcer associated with hypertension (10 percent as of October 2, 2007), TIA resulting to lacunar infarct status post ischemic stroke (10 percent), mental disturbances (perception changes, lack of attention span and focus and unfamiliarity with the familiar) associated with TIA (30 percent), headaches associated with TIA (0 percent), right thumb disability (0 percent), right knee disability (10 percent), and left knee disability (10 percent).

As illustrated above, the Veteran did not have a single service connected disability rated 100 percent during this period.  Even when these disabilities are grouped together by common etiology, no single disability grouping satisfied the schedular requirements for SMC at the housebound rate.  Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board also correctly applied the law concerning SMC eligibility in effect in February 2015.  The Board concluded that the preponderance of the evidence was against the finding that the Veteran met the schedular criteria for SMC. The medical evidence was negative for any showing that the Veteran should have been rated at 100 percent for his TIA which, in turn, would have qualified him for SMC.  The Veteran may disagree with how the facts and evidence were weighed by the Board, but such disagreement can never constitute CUE.  See 38 C.F.R. § 20.1403 (2016). 

Finally, the Board has considered the Veteran's contention that VA failed to provide a VA examination of his TIA in June 2007 (when a temporary 100 percent rating for TIA which he was receiving ended, and he was reduced to a 10 percent rating for TIA).  This is not the case.  The record is full of medical examinations and treatment records from the period in question - they simply do not support the Veteran's contentions that he should have been granted a 100 percent rating for TIA and should have received SMC for the period on appeal.

Namely, in June 2007, the Veteran underwent a VA examination in conjunction with this claim.  At that time, he had no overt residual motor symptoms.  His reflexes were normal.  His muscle strength, gait, and balance were normal.  There was no sensory impairment, bowel impairment, bladder impairment, cranial nerve impairment, cognitive impairment, psychiatric impairment, limitation of motion, loss of sense of taste, loss of sense of smell, dysesthesia, tremors, fasciculations, ataxia, incoordination, spasticity, speech impairment, or other autonomic nervous system problems.  This record suggested that the Veteran had thrombosis on February 11, 2007.  The medical records related to the Veteran's hospitalization at that time, however, did not support this.  Indeed, the April 2007 MRI specifically found no change in the lacunar type foci of ischemia in the left posterior parietal subcortex when compared to the November 2006 MRI, no ischemia, hemorrhage, or other abnormality of the intracranial vessels and venous system, and no evidence of venous thrombosis.

The record showed hospitalization for TIAs from November 22, 2006, to November 24, 2006, from December 20, 2006, to December 21, 2006, from February 11, 2007, to February 16, 2007, from July 29, 2007, to July 31, 2007, from October 21, 2007, to October 24, 2007, from May 8, 2008, to May 13, 2008, from June 30, 2008, to July 3, 2008, and from December 7, 2010, to December 9, 2010.  These records did not show embolism, thrombosis, or hemorrhage of the brain vessels.

A November 2008 examiner reviewed the Veteran's medical reports, claims files and hospitalization records, which indicated that he remained ambulatory, and had a motor strength of 5/5. The examiner concluded that the Veteran had numerous TIAs, but these were not due to an active cerebrovascular hemorrhage.  The Veteran's hospitalizations were not for an active cerebrovascular hemorrhage, but rather for TIA and acute hypertensive attack.  This examiner clarified the difference between a stroke and a TIA, explaining that a stroke is the rapidly developing loss of brain functions due to a disturbance in the blood vessels supplying blood to the brain.  This can be caused by ischemia (lack of blood supply) due to thrombosis, embolism, or hemorrhage and results in inability of the affected area of the brain to function.  This lead to the inability to move one or more limbs on one side of the body, inability to understand or formulate speech, or inability to see one side of the visual field.  The traditional definition of stroke is a "neurological deficit of cerebrovascular cause that persists beyond 24 hours or is interrupted by death within 24 hours," which reflected the reversibility of tissue damage and was devised for the purpose, with the time frame of 24 hours being chosen arbitrarily.  This 24-hour limit divides stroke from TIA, which is a related syndrome of stroke symptoms that resolve completely within 24 hours.  TIAs usually last for a few minutes, with most signs and symptoms disappearing within an hour, and all effects disappearing within 24 hours.  A TIA has the same origins as that of an ischemic stroke in that a clot blocks the blood supply to part of the brain, but in contrast to a stroke, which involves a more prolonged lack of blood supply, causes some permanent damage to the brain tissue, a TIA does not leave lasting effects to the patient's brain.  

In his November 2008 statement, the Veteran argued that the November 2008 opinion's use of the phrases "active stroke" and "Active cerebellar hemorrhage" should be changed.  The Board did not read the June 2007 VA opinion as suggesting that an active stroke requires perpetual symptoms.  Instead, the examiner has defined these terms and illustrated the difference between an active cerebrovascular hemorrhage (stroke) and a TIA, noting the 24-hour minimum duration required for classification as a stroke.  As these terms are internally defined within the opinion, no further clarification or alteration is necessary.

A private neurologist letter, dated in November 2008, noted that the neurologist first saw the Veteran in November of 2006 for numbness in the left side and parietal area on both sides.  MRI at that time showed lacunar type of ischemia in the left posterior parental subcortex and a linear focus in the right superior parietal region. Subsequent MRIs still showed the same ischemic lesions.  Subsequent hospital admissions were for TIAs\ischemic strokes manifested with transient blurring of vision and one-sided numbness. During these admissions acute hypertension was also noted.  There were already permanent lesions on MRI and the fact that he had strokes could not be changed.  Transcranial scan done on February 26, 2007 showed evidence of left middle cerebral artery stenosis.  On May 12, 2008, another transcranial scan showed the same stenosis and an additional evidence of stenosis on the right middle cerebral artery.  With these risks factor, the Veteran was always considered at risk for developing subsequent strokes.

As such, the evidence shows that not only did the Veteran attend a VA examination for his TIA in June 2007, but he received extensive medical care between June 1, 2007 and December 31, 2008.  No evidence supporting a 100 percent rating for his TIA was found anywhere.  Even if the Board found that VA erred in its duty to assist the Veteran by providing a VA examination, a failure of the duty to assist can never rise to the level of CUE. 38 C.F.R. § 20.1403 (d)-(e).  See also 38 U.S.C.A. §§ 501 (a), 7111.

In sum, the Veteran has not identified an error of fact or legal conclusion in the Board's February 2015 decision that would have altered the final outcome of the appeal for entitlement to SMC.  The Board concludes that the February 2015 Board decision denying the claim for SMC for the period of June 1, 2007 to December 31, 2008 was consistent with and supported by the evidence then of record, as well as the law that was in effect at that time and VA's interpretation of those laws.  Therefore, the motion for revision or reversal based on CUE must be denied.


ORDER

The motion to revise or reverse the February 24, 2015 Board decision denying entitlement to SMC based on housebound status from June 1, 2007 to December 31, 2008 is denied.




____________________________________________
YVETTE R. WHITE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs