Citation Nr: A19002097 Decision Date: 10/22/19 Archive Date: 10/21/19 DOCKET NO. 190426-8820 DATE: October 22, 2019 ORDER The Veteran’s motion for revision of a June 18, 2018 rating decision that awarded special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(4), on the basis of clear and unmistakable error (CUE), is denied. FINDING OF FACT The June 18, 2018 rating decision that awarded SMC pursuant to 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(4) was reasonably supported by the evidence then of record and was consistent with VA law and regulations then in effect and did not involve an outcome-determinative error. CONCLUSION OF LAW The June 18, 2018 rating decision that awarded SMC pursuant to 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(4) did not contain CUE. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2018), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran served in the Massachusetts National Guard with multiple periods of active and active duty for training from June 1955 to March 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2019 rating decision that found the June 18, 2018 rating decision did not contain CUE. In April 2019, the Veteran filed a notice of disagreement seeking direct review by the Board under the AMA. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). Under direct review, no development may be undertaken; the Board considers the same record as the RO in rendering a decision, and there is no evidence submission or a hearing request. Whether there was CUE in the June 18, 2018 rating decision that awarded SMC pursuant to 38 U.S.C. § 1114(k); 38 C.F.R. § 3.305(a)(4). The Veteran has raised a CUE motion asserting that the June 18, 2018 rating decision that awarded SMC at the “k” rate should be revised or reversed. Previous determinations that are final and binding will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). Where evidence establishes such error, the prior rating decision will be reversed or amended. Id. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). There is a three part test for CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (stating that to prove the existence of CUE as set forth in 38 C.F.R. § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision). 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Clear and unmistakable errors “are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” Russell, 3 Vet. App. at 313. “[E]ven where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable.” Fugo, 6 Vet. App. at 4344. A claimant must plead CUE with sufficient 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, 33 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). Allegations that previous adjudications improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. See Damrel, 6 Vet. App. at 246. VA’s breach of its duty to assist cannot form a basis for a claim of CUE. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). Significantly, with respect to the third prong of the test, the Board notes that the U.S. Court of Appeals for Veterans Claims (Court) held that “opinions from this Court that formulate new interpretations of the law subsequent to [a VA] decision cannot be the basis of a valid clear and unmistakable error claim.” Berger v. Brown, 10 Vet. App. 166, 170 (1997). The court reaffirmed this principle in Brewer v. West, 11 Vet. App. 228, 234 (1998). For the reasons explained below, the Board finds that no CUE is shown in the June 18, 2018 award of SMC pursuant to 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(4). The June 18, 2018 rating decision implemented a March 2018 Board decision that granted entitlement to disability compensation benefits for blindness of the right eye, claimed as the result of careless or negligent surgical treatment furnished to the Veteran at a VA Medical Center or by employees of the VA. As such, service connection was granted for right eye blindness with an initial rating of 100 percent 38 C.F.R. § 4.79, Diagnostic Code 6064, from November 20, 2011. Under Diagnostic Code 6064, a 100 percent rating is assigned with no more than light perception in one eye and visual acuity of 5/200 in the other eye. The SMC issue was inferred from the award of service connection for right eye blindness. That is, in the June 18, 2018 rating decision, the RO awarded the Veteran SMC under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(2) for loss of use of one eye having only light perception from November 20, 2011. Concerning this, VA law provides that entitlement to special monthly compensation is warranted if a veteran, as the result of service-connected disability, has suffered the loss of use or blindness of one eye, having only light perception. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). SMC grants an additional level of compensation to Veterans above the basic levels of compensation (0 percent -100 percent) for various types of losses or levels of impairment solely due to service-connected disabilities. The Veteran contends that the June 18, 2018 rating decision was clearly and unmistakably erroneous as he should have been awarded SMC at a higher level based on his bilateral vision loss and hearing loss. Specifically, he argues that he is entitled to SMC at the “l,” “m,” or higher rate based on blindness in both eyes or based on blindness in both eyes accompanied by bilateral deafness. In an April 2019 statement in support of the claim, the Veteran asserts that in the June 18, 2018 rating decision, vision loss was recognized in his left eye with 5/200 vision and a 100 percent rating was assigned for light perception only (LPO) vision on the right eye and 5/200 corrected vision on the left eye. The Veteran states that the correct SMC level should be “l” level for 100 percent vision loss and “m” level for hearing loss rated at 70 percent. As it pertains to the facts of this case, SMC at the “l” rate is warranted if a veteran, as the result of service-connected disability, is blind in both eyes, with 5/200 visual acuity or less. See 1114(l); 38 C.F.R. § 3.350(b). SMC at the “m” rate is warranted if a veteran, as the result of service-connected disability, has suffered blindness of both eyes, having only light perception bilaterally. See 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c). In addition, 38 U.S.C. § 1114(p) provides for “intermediate” SMC rates between the different subsections based on blindness in connection with deafness and/or loss or loss of use of a hand or foot. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). In essence, the Veteran claims CUE because the June 18, 2018 rating decision incorrectly applied the law extant at that time in overlooking the fact that he had bilateral blindness and determining that he did not meet the requirement for SMC at the contended provisions. At the time of the June 18, 2018 rating decision, although the medical evidence of record showed that the Veteran had been declared legally blind in both eyes, service connection was not established for left eye blindness. Therefore, any impairment resulting from the nonservice-connected left eye does not warrant additional level of compensation. As discussed above, SMC grants an additional level of compensation to veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities. The Veteran did not meet the requirements for under SMC “l” or “m” rate or intermediate “p” ratings, as his service-connected disabilities were limited to right eye blindness, bilateral hearing loss (no matter high the disability rating), and tinnitus. The record shows that correct facts, as they were known at the time, were before the RO during the June 18, 2018 rating decision; the record does not establish that RO incorrectly applied statutory or regulatory provisions at the time such that the outcome of the claim would have been manifestly different but for the error. The Board finds that at the time of the June 18, 2018 rating decision, there was a tenable basis for the RO’s decision to award SMC at the “k” rate based on the blindness in one eye as the evidence did not establish service connection for both eyes. As such, the June 18, 2018 rating decision did not contain CUE with respect to the failure to award SMC at a higher rate under 38 U.S.C. § 1114(l), 1114(m), or 1114(p), which required blindness in both eyes due to service-connected disability. In summary, there is nothing in the record to support that the RO did not apply the appropriate law or did not have the correct facts before it at the time of its June 18, 2018 rating decision and, therefore, the Veteran’s motion for revision of that decision is denied. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.