Citation Nr: 19147288 Decision Date: 06/18/19 Archive Date: 06/17/19 DOCKET NO. 16-33 292 DATE: June 18, 2019 ORDER The appeal of entitlement to special monthly compensation (SMC) by reason of being housebound, based on alleged clear and unmistakable error (CUE) in one or more RO rating decisions, is dismissed. REMANDED Entitlement to service connection for a traumatic brain injury is remanded. FINDING OF FACT In February 2013, the Board implicitly denied an inferred claim for SMC by reason of being housebound, on appeal from an October 2005 RO rating decision that granted service connection for narcolepsy and assigned an initial disability rating of 10 percent. CONCLUSION OF LAW The RO rating decisions relevant to the inferred issue of entitlement to SMC by reason of being housebound were subsumed by the February 2013 Board decision that granted an increased disability rating of 80 percent for narcolepsy and implicitly denied SMC by reason of being housebound; a claim of CUE in the subsumed RO rating decisions lacks legal merit, so must be dismissed. Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1998); Brown v. West, 203 F.3d 1378. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from February 1989 to November 1997. This matter came before the Board of Veterans’ Appeals (Board) on appeal from multiple Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issue on appeal. Further, as the instant decision remands the issue of service connection for a TBI, no discussion as to the duties to notify or assist is necessary as to that issue. REFERRED In a March 2015 decision, the Board referred the issues of CUE in the assignment of effective dates for the grant of a total disability rating based on individual unemployability due to service connected disabilities (TDIU) and for service connection for a sleep disorder. To date, it does not appear that these issues have been addressed by the Agency of Original Jurisdiction (AOJ), and they are again referred to the AOJ for appropriate action. Whether RO CUE in Denial of SMC by Reason of Being Housebound A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-02 (2018). All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the United States Court of Appeals for Veterans Claims (Court) and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20 (2018). Clear and unmistakable error 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. 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. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board’s adjudication of the appeal which, 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 clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The instant matter has a long and complicated procedural history. In an October 2005 rating decision, the RO granted service connection for narcolepsy and assigned an initial disability rating of 10 percent. The Veteran appealed the initial disability rating assigned. During the development of the higher initial rating appeal, in a February 2010 rating decision, the RO granted a TDIU based upon multiple service-connected disabilities. Subsequently, in a February 2013 decision, the Board granted a higher initial disability rating of 80 percent for narcolepsy for the entire initial rating period on appeal. At the time of the February 2013 Board decision, then, as now, VA’s duty to maximize benefits required it to assess all a claimant’s service-connected disabilities to determine whether any combination of the disabilities established eligibility for SMC under 38 U.S.C. § 1114(s) (2012). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, the Court held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a “total” rating. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley, 22 Vet. App. at 280). A veteran with a 100 percent schedular disability rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the SMC requirements (100 percent rating plus 60 percent rating). A TDIU could meet the SMC requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a “total” (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for SMC. See Buie at 249-50. Review of the February 2013 Board decision reflects that, while the Board did not address the question of entitlement to SMC in detail, the Board did note in its discussion of whether the Veteran was entitled to an extraschedular rating that, “[i]n reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.” As such, when considering the above, the other evidence of record, and applying the four Cogburn factors, the Board finds that the question of entitlement to SMC by reason of being housebound was implicitly denied by the Board in its February 2013 decision. See Cogburn v. Shinseki, 24 Vet. App. 205 (2010). Subsequently, in February 2013, the AOJ issued a rating decision effectuating the February 2013 Board decision and assigning a higher initial disability rating of 80 percent for the service connected narcolepsy for the entire initial rating period on appeal. This was not an adjudication on the part of the AOJ, as the AOJ was merely implementing the Board’s February 2013 increased rating grant (and implicit denial of SMC). In March 2013, the Veteran purported to file a CUE claim, arguing that SMC at the housebound rate should have been granted pursuant to Bradley and Buie, as a TDIU could have been granted for the narcolepsy alone, with additional combined service connected disabilities totaling 60 percent or more. The Veteran failed to specify what decision or decisions, be it a RO or Board decision, was being challenged on the basis of CUE. The RO took the March 2013 CUE statement as a claim for CUE in one or more prior RO rating decisions. In a July 2014 rating decision, the RO found that “a clear and unmistakable error was not found in not inferring special monthly compensation, housebound status.” Specifically, the RO purported to find no CUE in any prior RO rating decision because the Veteran’s TDIU was based upon multiple service connected disabilities, the Veteran did not have a single disability rated at 100 percent disabling, and there was no evidence that the Veteran was substantially confined to his dwelling and immediate premises due to disability. The Veteran appealed the July 2014 rating decision. RO decisions that are appealed to the Board become subsumed by the Board decision issued in that case. See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). 38 C.F.R. § 20.1104 (2018). Here, the issue of a higher initial disability rating for narcolepsy, which included the inferred issue of entitlement to SMC, was appealed to the Board following an October 2005 rating decision granting service connection and assigning an initial 10 percent disability rating for narcolepsy. As discussed above, the Board subsequently issued a decision in February 2013 granting a higher initial disability rating of 80 percent and implicitly denying SMC by reason of being housebound. The Board accordingly concludes that, for purposes of the purported CUE claim that is the subject of the present appeal, the RO’s October 2005 decision was subsumed by the February 2013 Board decision; thus, the Veteran is legally precluded from claiming CUE in any RO rating decision relevant to the question of SMC, because the February 2013 Board decision subsumed any such RO rating decisions. If the Veteran wishes to attack that Board decision, the Veteran must file a motion directly with the Board, alleging CUE in that February 2013 Board decision. 38 U.S.C. § 7111; Brown, 203 F.3d at 1381. Such a motion may be filed at any time. To the extent the Veteran may have been arguing CUE in the February 2013 rating decision effectuating the Board’s February 2013 decision, that was not an adjudication subject to an attack on the basis of CUE as the RO was merely implementing the Board’s findings, which included a higher initial disability rating and a denial of SMC. Accordingly, because there can be no CUE claim addressing one or more RO rating decisions concerning SMC by reason of being housebound as a matter of law, the attempted CUE claim will be appropriately dismissed. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Service Connection for a TBI At the outset, the Board notes that there has been some question concerning whether the Veteran has a pre service TBI. There is no question that prior to service, in August 1987, the Veteran was involved in a helmet to helmet football collision that resulted in a broken neck; however, per the medical treatment records, the Veteran did not lose consciousness after the collision, and post injury examination revealed the Veteran to be neurologically intact except for some dysesthesia. There is no indication that the Veteran was diagnosed with anything other than a broken neck after the injury. Further, per the report from the January 1989 service entrance examination, the Veteran’s head was noted to be normal at service entrance, with no notation of a prior TBI. For these reasons, the Board finds the instant matter to be a direct service connection claim. VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An August 1993 service treatment record reflects that during service the Veteran was in a motor vehicle accident and complained of occipital pain after hitting the head on the car windshield. The Veteran argues that this resulted in a TBI. Further, VA received a December 2014 private treatment letter indicating that currently manifesting TBI residuals “were the same as they were while in military service.” Based upon the above, the Board finds remand to obtain a VA TBI examination to be warranted. The issue of service connection for a TBI is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning TBI. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of TBI, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s TBI, if any, not already of record, for the period from January 2017. 3. Schedule a VA TBI examination. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinions: A) Does the Veteran have a currently diagnosed TBI and/or residuals of a TBI? If the VA examiner finds that the Veteran does not have a TBI and/or residuals of a TBI, the VA examiner should address the evidence to the contrary. B) Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed TBI and/or residuals of a TBI had its onset during a period of active service, including as due to an in service motor vehicle accident? 4. Then, readjudicate the issue of service connection for a TBI. If the benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, 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.