Citation Nr: 20000083 Decision Date: 01/02/20 Archive Date: 01/02/20 DOCKET NO. 19-12 255 DATE: January 2, 2020 ORDER The June 4, 2018, Board decision, having been found to be clearly and unmistakably erroneous in awarding special monthly compensation (SMC) at the housebound rate, effective July 12, 2013, is revised to reflect a denial of the claim of entitlement to SMC at the housebound rate. FINDINGS OF FACT 1. In a final decision dated June 4, 2018 (hereinafter June 2018 Board decision), the Board awarded SMC at the housebound rate and assigned an effective date of July 12, 2013. 2. The June 2018 Board decision contained legal error in awarding SMC at the housebound rate. 3. But for the legal error in the June 2018 Board decision, the outcome would have been manifestly different and the claim of entitlement to SMC at the housebound rate would have been denied. CONCLUSION OF LAW The June 2018 Board decision awarding SMC at the housebound rate, effective July 12, 2013, was clearly and unmistakably erroneous, and is revised to deny the claim of entitlement to SMC at the housebound rate. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-1411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1973 to December 1975 and from August 1983 to April 1995. This matter is currently before the Board on the Board’s own May 2019 motion for revision or reversal on the grounds of CUE in the June 2018 Board decision that, in pertinent part, awarded SMC at the housebound rate, effective July 12, 2013. Applicable Caselaw, Statutory, and Regulatory Provisions 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; 38 C.F.R. §§ 20.1400-02. 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 Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. A decision by the Board is subject to revision on the grounds of CUE. 38 U.S.C. § 7111(a). Review to determine whether clear and unmistakable error exists in a final decision may be initiated by the Board, on its own motion, or by a party to that decision. 38 U.S.C. § 7111(c); 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE 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 this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The Board finds that the present motion complied with these requirements and the motion is properly before the Board for consideration on the merits. 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. 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. 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 CUE 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 CUE, 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 Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that 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. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Examples of situations that are not CUE include: (1) a new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA’s duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass 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 statute or regulation. See 38 C.F.R. § 20.1403(e). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision. 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Discussion In the present case, the Board, on its own motion, alleges CUE in a June 2018 Board decision that awarded SMC at the housebound rate, effective July 12, 2013. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). The pertinent laws and regulations at the time of this decision were the same as they are now. SMC is payable at the housebound rate where the claimant has a single service-connected disability rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350(i). Generally, benefits under 38 U.S.C. § 1114(s) are not available to a Veteran whose total disability rating is based on multiple disabilities, none of which is rated as 100 percent disabling. However, a total disability rating based on individual unemployability (TDIU) may satisfy the total rating element under 38 U.S.C. § 1114(s), but only when that award is predicated on a single disability, rather than on multiple service-connected disabilities. Bradley v. Peake, 22 Vet. App. 280 (2008) (noting the circumstances under which a disorder, while rated less than 100 percent disabling, satisfies the requirement of service-connected disability rated as total the purposes of 38 U.S.C. § 1114(s)). At the time of the June 2018 Board decision, the Veteran was in receipt of service connection for coronary artery disease (rated 30 percent disabling from April 2, 1995 and 60 percent disabling from March 21, 2013); a lumbar spine disability (rated 20 percent disabling from April 2, 1995, 10 percent disabling from November 9, 1995, and 20 percent disabling from October 24, 2002); right lower extremity radiculopathy (rated 20 percent disabling from July 12, 2013); left lower extremity radiculopathy (rated 20 percent disabling from July 12, 2013); a right foot disability (rated 0 percent disabling from April 2, 1995 and 10 percent disabling from November 9, 1995); a left ankle disability (rated 10 percent disabling from June 23, 2010); a left foot disability (rated 10 percent disabling from June 23, 2010); a left knee sprain (rated 40 percent disabling from June 23, 2010); hypertension (rated 0 percent disabling from October 24, 2002); and left knee instability (rated 20 percent disabling from June 23, 2010). The Board made an error of law in the June 2018 decision by awarding SMC at the housebound rate, effective July 12, 2013. The Board awarded SMC at the housebound rate based on a finding that the Veteran’s multiple service-connected musculoskeletal disabilities constituted a single disability rated as totally disabling for SMC purposes. Specifically, the Board found that the Veteran’s service-connected musculoskeletal disabilities, including a lumbar spine disability, right and left foot disabilities, a left ankle disability, and a left knee disability, constituted a single disability for purposes of entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s). However, the Court of Appeals for Veterans Claims (Court) has specifically held that multiple disabilities cannot constitute a single service-connected disability rated as total for the purpose of establishing entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s). Bradley, 22 Vet. App. at 289-91 (2008) (holding that the provisions of 38 C.F.R. § 4.16(a), which directs that multiple disabilities be treated as one for purposes of establishing entitlement to schedular TDIU, only apply to TDIU ratings and do not apply to ratings for SMC at the housebound rate under 38 U.S.C. § 1114(s)). While the Board in the June 2018 decision awarded entitlement to a TDIU, effective May 2012, such award was based on the impact of the Veteran’s multiple service-connected disability on his employability, and not based on the impact of a single disability. Furthermore, the evidence of record at the time of the June 2018 Board decision did not clearly and unmistakably support a finding that the Veteran was entitled to a TDIU based on a single service-connected disability, as both the July 2013 vocational assessment report and the January 2018 statement from the Veteran’s former supervisor indicated that the Veteran’s occupational impairments and unemployability were caused by the combined effects of his multiple service-connected disabilities. As such, the Board made an error of law in awarding SMC at the housebound rating, effective July 12, 2013, as it is clear and unmistakable that the Veteran’s multiple service-connected musculoskeletal disabilities did not constitute a single service-connected disability rated as total for the purpose of establishing entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s). Thus, the Board finds that the statutory or regulatory provisions extant at the time of the June 2018 Board decision were incorrectly applied and the error is “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made.” Thus, after considering the evidence of record at the time of the June 2018 Board decision, the Board finds clear and unmistakable legal error in the Board’s June 2018 decision that awarded SMC at the housebound rate, effective July 12, 2013, as the statutory and regulatory provisions extant at the time were not properly applied. Moreover, had the legal error discussed above not been committed, the June 2018 Board decision manifestly would have denied entitlement to SMC at the housebound rate, as the Veteran clearly and unmistakably did not have either a single service-connected disability rated as totally disabling or a single service-connected disability that could form the basis of an award of a TDIU to satisfy the total rating element under 38 U.S.C. § 1114(s). The Board notes that the Veteran has a separate pending appeal as to the issues of entitlement to service connection for sleep apnea and entitlement to increased ratings for right and left lower extremity radiculopathy, a left knee sprain, and left knee instability. The Board in the June 2018 decision remanded these issues for additional development. Nothing in this decision bars consideration of entitlement to SMC at the housebound rate from being raised by the record and adjudicated as part of the pending appeal. See Akles v. Derwinski, 1 Vet. App. 118 (1991). In sum, the June 2018 Board decision is clearly and unmistakably erroneous and should be revised, resulting in a denial of SMC at the housebound rate. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 20.1400, 20.1402-1404 (2018). DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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.