Citation Nr: 19118242 Decision Date: 03/14/19 Archive Date: 03/13/19 DOCKET NO. 12-21 092 DATE: March 14, 2019 ORDER The Veteran’s motion to revise the March 3, 2010, rating decision that failed to award special monthly compensation (SMC) for loss of use of a creative organ on the grounds of clear and unmistakable error (CUE) is granted. SMC for loss of use of a creative organ under 38 U.S.C. § 1114(k), effective January 21, 2010, is granted. REMANDED Entitlement to an earlier effective date for the grant of 70 percent rating for posttraumatic stress disorder (PTSD) prior to February 25, 2017, is remanded. Entitlement to an earlier effective date for the grant of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to February 25, 2017, is remanded. Entitlement to an initial rating for PTSD in excess of 50 percent prior to February 25, 2017, and in excess of 70 percent thereafter is remanded. FINDINGS OF FACT 1. The statutory or regulatory provisions then extant at the time were not correctly applied in the March 2010 rating decision that granted service connection for erectile dysfunction without assigning special monthly compensation for loss of use of a creative organ and the failure to correctly apply the laws and regulations manifestly changed the outcome of that rating decision. 2. Service connection for erectile dysfunction is in effect from January 21, 2010. CONCLUSIONS OF LAW 1. The criteria for revision of a March 2010 rating decision that failed to award SMC for loss of use of a creative organ under 38 U.S.C. § 1114(k) have been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105 (a), 3.344. 2. The criteria for SMC for loss of use of a creative organ, effective January 21, 2010, have been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1969 to October 1971, including service in the Republic of Vietnam. In February 2017, the Board denied entitlement to an effective date prior to July 6, 2012, for an award of SMC and found no CUE in a March 3, 2010, rating decision that awarded a noncompensable rating for erectile dysfunction. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) which, in April 2018, on the basis of a Memorandum Decision, vacated the denial and remanded the matter to the Board for further action. In December 2017 the Board, in pertinent part, denied a rating for PTSD in excess of 50 percent prior to February 25, 2017, and in excess of 70 percent thereafter. The Veteran appealed the Board’s decision to the Court which, in September 2018, on the basis of a Joint Motion for Partial Remand (Joint Motion), vacated the denial and remanded the matter to the Board for further action. 1. The Veteran’s motion to revise the March 3, 2010, rating decision that failed to award special monthly compensation (SMC) for loss of use of a creative organ on the grounds of clear and unmistakable error (CUE) is granted. 2. SMC for loss of use of a creative organ under 38 U.S.C. § 1114(k), effective January 21, 2010, is granted. The Veteran asserts that there is CUE in the March 3, 2010, rating decision that granted service connection for erectile dysfunction, effective January 21, 2010, without awarding SMC for loss of use of a creative organ. Initially, the Board notes that the March 2010 rating decision was final as the Veteran was notified of the decision and of his appellate rights but did not appeal. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). 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. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. Here, the March 2010 rating decision granted service connection for erectile dysfunction but did not award SMC for loss of use of a creative organ. Under the law extant at the time of the March 2010 rating decision, SMC was warranted under 38 U.S.C. § 1114(k) where a veteran, as the result of service-connected disability, suffered the loss of use of one or more creative organs. The Board finds that revision of the March 2010 rating decision on the basis of CUE is warranted as VA adjudicators incorrectly applied the provisions of 38 U.S.C. § 1114(k) extant at the time. Specifically, the adjudicators granted service connection for erectile dysfunction without awarding SMC for loss of use of a creative organ. It is well-established that VA has a duty to maximize a claimant’s benefits. In Bradley v. Peake, the Court found that the RO misapplied the law governing the award of SMC, reiterating that that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim.” 22 Vet. App. 280 (2008); see also Akles v. Derwinski, 1 Vet. App. 118 (1991). The RO’s error of law compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. For these reasons, the Veteran’s motion to revise the March 2010 rating decision that failed to award SMC for loss of use of a creative organ, on the grounds of CUE is granted. Additionally, SMC for loss of use of a creative organ is warranted from January 21, 2010, that is, the effective date of service connection for erectile dysfunction. As entitlement to SMC for loss of use of a creative organ is directly tied to entitlement to erectile dysfunction, January 21, 2010, represents the earliest possible effective date for the award of SMC. REASONS FOR REMAND 1. Entitlement to an earlier effective date for the grant of 70 percent rating for PTSD prior to February 25, 2017. 2. Entitlement to an earlier effective date for the grant of a TDIU prior to February 25, 2017. 3. Entitlement to an initial rating for PTSD in excess of 50 percent prior to February 25, 2017, and in excess of 70 percent thereafter. In accord with the September 2018 Joint Motion, the Board finds that a retroactive medical opinion is needed to fully understand when the Veteran’s PTSD progressed to its current severity. Specifically, while the February 2017 VA examination report indicates a progression of the Veteran’s symptoms since his last examination, the examiner did not discuss or explain when this progression occurred or how it affected the Veteran’s level of disability. Under such circumstances, the duty to assist requires a retrospective opinion. See Chotta v. Peake, 22 Vet. App. 80, 86 (2008). Additionally, the record shows that the Veteran receives regular VA care for his PTSD. Records of his VA treatment, however, dated since April 2017, have not been associated with the claims folder. Records of his VA treatment are constructively before VA. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In light of the state of the record, the Board finds that the claims must be remanded to associate those records and to afford him a VA examination to assess the current severity of his PTSD. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran’s pertinent medical history). The issue of entitlement to a TDIU is inexctricably intertwined with the inial increased rating claim for PTSD. Even though the RO awarded a TDIU, effective February 25, 2017, the issue of entitlement to a TDIU prior to February 25, 2017, remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Moreover, decision on the issue of entitlement to a TDIU would be premature at this time as it is inextricably intertwined with the remanded PTSD claims. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2017 to present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected psychiatric disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 3. The examiner is to provide a retroactive opinion explaining when the progression of symptoms noted in the February 2017 VA examination report occurred and how the progression affected the Veteran’s level of disability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel