Citation Nr: 18151685 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-23 389 DATE: November 20, 2018 ORDER The appeal for whether there was clear and unmistakable error (CUE) in a November 2012 rating decision that failed to award entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s)(1) is denied. FINDING OF FACT The unappealed November 2012 rating decision that failed to award entitlement to SMC under 38 U.S.C. § 1114(s)(1) did not involve error that would undebatably lead to a different result if such error was corrected, and was supported by the evidence then of record. CONCLUSION OF LAW The November 2012 rating decision does not contain CUE. 38 U.S.C. §§ 1114(s), 5109A, 7105 (2012); 38 C.F.R. §§ 3.104, 3.105(a), 3.350(i) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1965 to August 1973. This matter comes before the Board of Veterans’ Appeals on appeal from November 2012 and December 2013 rating decisions. 1. Whether there was CUE in a November 2012 rating decision that failed to award entitlement to SMC under 38 U.S.C. § 1114(s)(1) The Veteran has asserted that the November 27, 2012, rating decision failed to award him SMC under 38 U.S.C. 1114(s)(1) was clear error on the part of the VA. RO decisions that are final and binding are accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a) (2017); 38 U.S.C. § 5109A (2012). The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator, that is, more than a simple disagreement as to how the facts were weighed and evaluated; or that the statutory or regulatory provisions existing at that time were incorrectly applied. Second, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE is a very specific and rare kind of error. CUE is the kind of error to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). The mere misinterpretation of facts or failure to fulfill the duty to assist does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); see also Damrel, 6 Vet. App. at 245 (holding that a valid CUE claim requires that the veteran assert more than a disagreement as to how the facts were weighed or evaluated). Simply claiming CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE. Fugo, 6 Vet. App. at 44; see also Russell, 3 Vet. App. 310. Similarly, neither are too broad, general, and unspecified allegations of error based on the failure to follow regulations, failure to give due process, failure to accord benefit of the doubt, failure of duty to assist, and any other general, non-specific claim of “error.” Id. If a claimant wishes to reasonably raise a CUE claim, 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 CUE on its face, the claimant also must give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. There is a presumption of validity to otherwise final decisions, and the presumption is even stronger where the decision is being collaterally attacked as in a CUE claim. Id. In a June 2012 Decision Review Officer decision, the Veteran was awarded entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), effective June 19, 2009. Based on a complete review of his claims file, the Veteran was found to be unable to secure or follow a substantially gainful occupation as a result of his service-connected posttraumatic stress disorder (PTSD) and left upper extremity disabilities. In a September 2012 Board decision, the Veteran was awarded increased disability ratings for his service-connected PTSD and left chest shrapnel wounds with muscle atrophy in MGIII and left upper extremity limitation of motion. The RO effectuated those awards in a November 2012 rating decision. At that time, the Veteran’s service-connected disabilities consisted of PTSD, rated as 70 percent disabling; left chest shrapnel wounds with muscle atrophy in MGIII and left upper extremity limitation of motion, rated as 40 percent disabling; type II diabetes mellitus, rated as 20 percent disabling; tinnitus, currently rated as 10 percent disabling; and history of left rib fracture, bilateral hearing loss, and hemorrhoidectomy, each rated as noncompensable. The total combined rating for his service-connected disabilities was 40 percent from March 9, 1998; 50 percent from July 9, 2001; 60 percent from March 12, 2007; and 90 percent from May 22, 2007. 38 C.F.R. §§ 4.16(a), 4.25. The RO also awarded entitlement to TDIU from October 1, 2008, the day the Veteran was noted to become unemployable due to his service-connected disabilities. The RO did not acknowledge or discuss the matter of entitlement to SMC under 38 U.S.C. § 1114(s)(1) in the November 2012 rating decision. The Veteran was notified of the decision and did not appeal. Consequently, the decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In a March 2013 statement, the Veteran’s attorney appeared to file a notice of disagreement with the November 2012 rating decision, arguing that the RO failed to award entitlement to SMC under 38 U.S.C. § 1114(s)(1). In an October 2013 letter, the RO informed the Veteran and his attorney that it could not accept the March 2013 letter as a notice of disagreement with the November 2012 rating decision, as the issue of SMC was never considered in that decision. However, the RO did accept the March 2013 statement as a claim for benefits. In a December 2013 rating decision, the RO indicated that CUE was not found in not awarding SMC in the November 2012 rating decision. It was noted that as entitlement to TDIU was not established for a single service-connected disability, the criteria for SMC under 38 U.S.C. § 1114(s)(1) was not met. The Veteran has filed a timely appeal of that decision. Based upon the evidence existing at the time of the unappealed November 2012 rating decision, the Board finds the record does not establish that the correct facts, as they were known at the time, were not before the RO or that the RO incorrectly applied the statutory or regulatory provisions at the time such that the outcome of this matter would have been manifestly different but for the error. When a veteran has a single disability rated totally disabling, and additional disabilities independently rated a combined 60 percent disabling or more, regulations provide for the payment of SMC at the housebound rate. 38 C.F.R. § 3.350(i) (2012); see also 38 U.S.C. § 1114(s)(1) (2012). There is no need to establish factually that service-connected disabilities render a veteran substantially confined to his dwelling. A claim for SMC can be considered part and parcel of a claim for increased rating. Akles v. Derwinski, 1 Vet. App 118 (1991). Moreover, VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a veteran becomes eligible without need for a separate claim” and remanding, pursuant to VA’s duty to maximize benefits, for VA to determine whether the Veteran’s PTSD, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). In Bradley, the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant SMC under 38 U.S.C. § 1114(s). Id. A TDIU rating based upon multiple disabilities does not meet the single disability requirement of 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010). This matter turns on whether the Veteran had a single disability rated totally disabling at the time of the November 2012 rating decision. The Veteran was awarded entitlement to TDIU as of October 1, 2008, that was clearly based on his service-connected PTSD and left upper extremity shrapnel wound residuals. VA general medical and PTSD examination reports dated in April 2009 detailed that the Veteran’s left upper extremity disability limited his ability to perform physical tasks at work, including unclogging mail bundles and other troubleshooting activities. It was further noted that his left arm condition would cause difficulty with a sedentary job requiring manipulation of a computer keyboard or frequent use of the left hand for telephone work. He was also noted have at least moderate difficulty due to psychiatric symptoms and moderate difficulty keeping his function together overall. In a May 2009 statement, a private physician with a specialty in psychiatry and neurology indicated that the Veteran was unemployable with PTSD symptoms including difficulty maintaining effective work and social relationships. Thus, the Veteran does not have a single disability rated at 100 percent with additional disabilities rated at 60 percent or more involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2017); see Bradley v. Peake, 22 Vet. App. 280 (2008). Based on the foregoing discussion, the Board finds that the record does not reflect that the November 2012 rating decision contained CUE when it failed to award entitlement to SMC under 38 U.S.C. § 1114(s)(1), as the rating decision did not contain an error that would undebatably lead to a different result if such error was corrected, and was supported by the evidence then of record. The Board has considered an argument made by the representative in an attachment to the substantive appeal dated in May 2016 which is to the effect that the clear and unmistakable error standard does not apply in this case as the rating decision of November 2012 never became final. The representative further argues that the Veteran was entitled to special monthly compensation benefits under 38 U.S.C. 1114(s)(1) as a matter of law from October 1, 2008. However, even accepting the argument that the CUE standard does not apply, this claim for special monthly compensation benefits would still fail. As discussed above, the Veteran does not have a single disability rated at 100 percent with additional disabilities rated at 60 percent or more involving different anatomical segments or bodily systems. The Board is not convinced by the argument that the PTSD alone would have warranted a total rating as it rendered him unemployable. The Board again notes that when the Veteran was awarded entitlement to TDIU as of October 1, 2008, that was clearly based on his service-connected PTSD and left upper extremity shrapnel wound residuals. On the VA psychiatric examination in 2012, the Veteran reported that he did believe that he could do some type of work, if it was repetitive enough to allow his impaired memory/concentration to not be an issue, and if it were relatively solitary, so that he would not have interpersonal difficulties. The examiner noted that this made his prospects for employment difficult, but not completely impossible due to PTSD symptoms. The examiner concluded that “It cannot be stated on an as likely as not basis that his PTSD symptoms in isolation have increased to the point that he is now unable to work in any capacity.” Thus, the Board finds that the criteria for special monthly compensation under U.S.C. 1114(s)(1) were not met. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. D. Deane, Counsel