Citation Nr: 21003699 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 19-15 728A DATE: January 22, 2021 ORDER 1. The motion for reversal or revision of the June 2019, Board of Veterans’ Appeals (Board) decision that denied entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(o) is dismissed. 2. The motion for reversal or revision of the June 2019, Board of Veterans’ Appeals (Board) decision that denied entitlement to revocation of a notification letter dated April 2, 2015, regarding the entitlement to SMC under 38 U.S.C. § 1114(k) for loss of the use of buttock is dismissed. FINDINGS OF FACT 1. In a June 2019 decision, the Board denied entitlement to SMC under 38 U.S.C. § 1114(o), entitlement to SMC under 38 C.F.R. § 3.350(f)(3), and entitlement to revocation of a notification letter dated April 2, 2015 regarding the entitlement to SMC under 38 U.S.C. § 1114(k) for loss of the use of buttock. 2. In December 2020, the United States Court of Appeals for Veterans Claims (Court) granted the Joint Motion for Partial Remand (Joint Motion) and vacated the Board’s June 2019 denial of the claim for SMC under 38 U.S.C. § 1114(o) and remanded the claim to the Board for compliance with instructions provided in the Joint Motion, and dismissed the appeal as to the remaining issues, as requested in the Joint Motion. 3. The Veteran’s motion for reversal or revision of the June 2019 Board decision that denied entitlement to revocation of a notification letter dated April 2, 2015, regarding entitlement to SMC under 38 U.S.C. § 1114(k) for loss of the use of buttock, based on CUE has not met the pleading requirements and thus must be dismissed without prejudice to refiling. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404. CONCLUSIONS OF LAW 1. As the Court vacated the Board’s June 2019 denial of the claim for SMC under 38 U.S.C. § 1114(o) and remanded the claim to the Board for compliance with instructions provided in the Joint Motion, the Veteran’s CUE motion is dismissed. 38 U.S.C. § 7111; 38 C.F.R. § 20.1400. 2. The issue of whether the June 2019 Board decision denying the revocation of a notification letter dated April 2, 2015, regarding the entitlement to SMC under 38 U.S.C. § 1114(k) for loss of the use of buttock should be revised or reversed on the grounds of CUE is dismissed with no prejudice to refiling. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The moving party in this matter is the Veteran, who had active service from July 1975 to July 1981. This matter comes before the Board of Veterans’ Appeals (Board) of the Department of Veterans Affairs (VA) as an original action on the motion by the Veteran to revise or reverse, on the basis of clear and unmistakable error, a June 12, 2019, Board decision. In June 2019, the Veteran filed a motion for CUE in the June 2019 Board decision that denied entitlement to a higher level of special monthly compensation (SMC) under 38 U.S.C. § 1114(o), entitlement to a higher level of SMC under 38 C.F.R. § 3.350(f)(3), and entitlement to revocation of a notification letter dated April 2, 2015, regarding the entitlement to SMC K for loss of the use of buttocks. In August 2020, the Veteran appealed the Board’s June 2019 denial of the claim for entitlement to a higher level of SMC under 38 U.S.C. § 1114(o) to the Court. In December 2020, a Joint Motion was filed, and the Veteran indicated he did not challenge those parts of the Board’s decision that denied (1) entitlement to a higher level of SMC under 38 C.F.R. § 3.350(f)(3); and (2) revocation of a notification letter dated April 2, 2015, regarding the entitlement to SMC under 38 U.S.C. § 1114(k) for loss of use of buttocks, and the parties respectfully requested that the Court dismiss the appeal as to these claims. In December 2020, the Court granted the Joint Motion and vacated the Board’s June 2019 denial of the claim for SMC under 38 U.S.C. § 1114(o) and remanded the claim to the Board for compliance with instructions provided in the Joint Motion. The Court also dismissed the appeal as to the remaining issues, as requested in the Joint Motion. Analysis In his June 2019 motion for CUE, the Veteran contends there is CUE in the June 2019 Board decision in (1) failing to award SMC(l) solely on the basis of the disturbances in the activities of daily living (ADLs) without taking into consideration the loss of function of both lower extremities, and (2) the failure to award SMC under 38 U.S.C. § 1114(k) loss of function of both lower extremities, which is rated at 100 percent and award the corresponding compensation for such disability. He points out that the Board stated that the disability of the loss of function of both feet had been rated at 100 percent since August 20, 2009, and is thus the basis of the Veteran’s award of aid and attendance (A&A), but the Veteran argues that the initial award for A&A dates back to August 20, 2009, before the loss of function of feet was recognized in October 2012. He contends that during the initial award in June 2011 there was no loss of function of both feet and peripheral neuropathy was only rated at 20 percent and the loss of function of both buttocks was not a factor in the award of A&A at that time, so the only justification at the time of the June 2011 award was disturbances to ADLs, which was present from the start of the filing of the claim and not the loss of use of both feet. He also argues with the Board’s factfinding that the October 2009 VA treatment record indicated no need for A&A. However, the Veteran points out he requested grab bars and toilet seats to help, indicating that he needed A&A. Although the Board noted lay statements indicated his lower extremities caused difficulties, the Veteran stated it was not the prevalent cause of the disturbances in his ADL, and other service-connected disabilities also caused his inability to perform ADLs and so it was not entirely due to his loss of function in his lower extremities. He reported shortness of breath secondary to Atrial Fibrillation and low blood oxygen level was primarily the main problem. He also contends the Board made an error of law by not applying law correctly and therefore SMC(l) should be awarded effective August 2009 based on disturbances of ADL, as well as an award of SMC(m) based on the loss of function of lower extremities, SMC(n) based on f(4) or p(2) as a result of bronchial asthma, and RQ based on the presence of an existing SMC under 38 U.S.C. § 1114(k) loss of function creative organ, current rating under SMC(n) plus factual establishment that the Veteran is definitely in need of A&A. The Veteran also argues that the Board failed to award SMC under 38 U.S.C. § 1114(k) for loss of function of both lower extremities and the corresponding compensation. He contends the DRO refused to award SMC under 38 U.S.C. § 1114(k) and incorrectly determined it would be double compensation since the disability was already utilized in SMC(l) and claims the Board is authorized to award such compensation. In a subsequent July 2019 addendum Motion for CUE, the Veteran essentially reiterated his previous contentions, and added revocation of the loss of function of both buttocks is not warranted. He argues that the RO erred in not applying 38 U.S.C. § 1114(k) in the October 2012 rating decision error. The Veteran has not offered any argument as to CUE in the Board’s denial of entitlement to SMC under 38 C.F.R. § 3.350(f)(3), thus, this issue will not be addressed. 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 motion for revision of a decision based on CUE must be in writing and must be signed by the moving party or that party’s representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable VA file number; and the date of the Board decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. 38 C.F.R. § 20.1404(a). The motion to review a prior final Board decision on the basis of CUE must also 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). 1. The motion for reversal or revision of the June 2019, Board decision that denied entitlement to SMC under 38 U.S.C. § 1114(o) In the June 2019 Board decision, the Board denied SMC under 38 U.S.C. § 1114(o) on the basis that the Veteran did not meet the criteria for two or more of the rates provided in one or more of § 1114(l) through § 1114(n). The Board noted that, in this case, the Veteran met only the criteria for SMC under 38 U.S.C. § 1114(l). The Board additionally explained that even if the argument was that the Veteran had two or more rates provided in one or more of §1114(l) through § 1114(n), due to receiving SMC under 38 U.S.C. § 1114, subsection (l) and (m) (as subsection (p) is rated as (m)), based on the need of aid and attendance for subsection (l) and the service-connected disability of the use of loss of feet in subsection (m), in order to receive SMC under 38 U.S.C. § 1114(o), determinations for entitlement under § 1114(o) must be based upon separate and distinct disabilities where the pathology for the disabilities is not the same. The Board determined the pathology of the loss of use of both feet would be considered the same in each subsection, and hence, the criteria for SMC under 38 U.S.C. § 1114(o) would not be met. The Board explained that entitlement for the need of aid and attendance under 1114(l) could not be obtained without additional support for loss of the use of both buttocks or the loss of the use of both legs. The Board explained that the disability of the loss of feet, rated as 100 percent disabling effective August 20, 2009, has been shown to be a part of the rationale in the VA examinations of record regarding the need of aid and attendance. In addition, the Board pointed out that the lay statements by the Veteran and those who have witnessed the effects of the Veteran’s disabilities have indicated that the use of the Veteran’s lower extremities, or lack thereof, has caused difficulty in the Veteran’s ability to conduct the activities of daily living on his own. Therefore, based on the evidence of record, the Board did not find that aid and attendance would be warranted without the inclusion of the Veteran’s service-connected disability of the loss of use of both feet. The Board also noted that although the June 2011 rating decision shows that the February 2011 VA examination report was persuasive to afford the Veteran SMC under 38 U.S.C. § 1114(k) for the loss of buttocks while the Veteran’s associated service-connected disability bilateral lower extremity disability was rated as 10 percent disabling, when the increase in the Veteran’s service-connected disability to 100 percent disabling due to loss of feet occurred in the October 2012 rating decision, it was noted the April 2011 VA examination showed an increase and worsening of the Veteran’s bilateral lower extremities to cause problems with his ambulation and strength of this lower extremity disabilities. This included the symptoms of loss of muscle in the buttocks as a neurological impairment. The Board noted that the Veteran is not service connected for a buttocks disability and that the April 2011 VA examination, which provided the evidence for 100 percent evaluation for the loss of feet, was used, rather than the evidence in the February 2011 VA examination that reflect a worsening of the Veteran’s condition. Here, the Court has vacated the issue of claim for SMC under 38 U.S.C. § 1114(o) that has been challenged on the basis of CUE in the moving party’s motion. Thus, with the exception of the claims for (1) entitlement to SMC under 38 C.F.R. § 3.350(f)(3) and (2) revocation of a notification letter dated April 2, 2015, the Board’s June 2019 decision was clearly vacated by the Court, and is not subject to revision by the Board. As the issue pertaining to SMC under 38 U.S.C. § 1114(o) has been vacated and remanded to the Board for issuance of another decision consistent with the Joint Motion, there is no Board decision available for revision. See 38 C.F.R. § 20.1400; see Winsett v. Principi, 341 F.3d 1329, 1331 (Fed. Cir. 2003) (holding that the Board, as a lower tribunal, may not review the decision of a higher tribunal under guise of correcting CUE). Accordingly, there is no longer a controversy regarding the issue of SMC under 38 U.S.C. § 1114(o). Thus, the Board does not have jurisdiction to adjudicate the merits of the CUE motion regarding the entitlement to SMC under 38 U.S.C. § 1114(o), and it is dismissed. 2. The motion for reversal or revision of the June 2019 Board decision that denied entitlement to revocation of a notification letter dated April 2, 2015, regarding the entitlement to SMC under 38 U.S.C. § 1114(k) for loss of the use of buttock There is a preliminary issue of whether CUE was properly pled from the outset. As explained in detail, the Veteran has stated several errors allegedly promulgated in the October 2012 RO rating decision that revoked entitlement to SMC under 38 U.S.C. § 1114(k) for the loss of use of buttocks. Thus, the arguments amount as to an error in the RO’s October 2012 decision and fails the pleading requirements for CUE in a Board decision. See 38 C.F.R. § 20.1404(b). As noted by the Board in the June 2019 decision and as evidenced in the records, in October 2012, the RO revoked SMC under 38 U.S.C. § 1114(k) for loss of use of buttocks on the basis that the evidence showed he was able to raise himself out of a chair and from a sitting position without assistance and the evidence did not show that he suffered from a muscle injury of the buttocks. A notification letter regarding this decision was issued to the Veteran that same month, however, the Veteran did not appeal the decision by filing a notice of disagreement, the next step in the appellate process, as explained in the notification letter. See 38 C.F.R. §§ 20.200, 20.201. Hence, the October 2012 decision is final, and is not subject to revision on the same factual basis, as a petition to reopen was not filed on and after August 29, 2001, and before February 19, 2019. See 38 U.S.C. § 7105(d); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. The Veteran has also not filed a claim seeking readjudication of the claim under the AMA’s lower “new and relevant evidence” standard for claims filed after February 19, 2019. See 38 U.S.C. § 5104A; 38 C.F.R. §§ 3.104(c), 3.2501(a)(1). Notably, a March 2015 Board remand noted that the Veteran had requested an accounting of SMC in a statement received in May 2013 that had not been completed. Accordingly, an audit was completed, and an April 2015 notification letter notified the Veteran of the results of the audit and the letter also stated that entitlement to SMC under 38 U.S.C. § 1114(k) for loss of use of buttocks was revoked. The Veteran filed a notice of disagreement on April 16, 2015, disagreeing with the April 2, 2015, notification letter statement that SMC under 38 U.S.C. § 1114(k) for loss of use of buttocks is revoked. Thus, as correctly explained by the AOJ in the October 2016 statement of the case, there is no error in the April 2015 notification letter that stated SMC under 38 U.S.C. § 1114(k) for loss of use of buttocks is revoked and the initial decision was made by the October 2012 RO decision, which is now a final decision. The RO explained that the April 2015 notification letter did not make this decision, rather it was merely reporting a prior decision made by the October 2012 decision. The AOJ stated the April 2015 notification letter correctly stated that SMC under 38 U.S.C. § 1114(k) is revoked and the audit completed in accordance with the March 2015 Board remand shows that the VA properly paid the Veteran’s disability payments. The AOJ thus indicated there was no correction necessary to the April 2015 notification letter that stated SMC under 38 U.S.C. § 1114(k) for loss of use of buttocks is revoked as determined by the RO in the October 2012 rating decision. In the Board’s June 2019 decision, the Board determined that the Veteran was provided notice of the revocation in a timely manner and thus no further discussion of the VA’s duty to notify and duty to assist obligations was necessary. 38 U.S.C. §§ 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. Thus, the Board denied the claim seeking revocation of the April 2015 notification letter. In the June and July 2019 motions for CUE, although the Veteran has contended that SMC under 38 U.S.C. § 1114(k) is warranted based on the loss of function of his buttocks, the Board notes that the issue on appeal in the June 2019 Board decision did not address the merits of this issue, but rather concluded that revocation of the April 2015 notification letter was not warranted given that there was no error in the VA’s duty to notify and assist. As the Veteran did not appeal the October 2012 rating decision that initially revoked the award of SMC under 38 U.S.C. § 1114(k) benefits and it is not the subject of the June 2019 Board decision, the Board cannot address the merits of the issue by way of the CUE motion. In connection, in the June 2019 addendum Motion for CUE, the Veteran argues there was an error by the RO in not applying 38 U.S.C. § 1114(k) and thus there was an error in the October 2012 rating decision. Thus, there is no motion of CUE specific to the June 2019 Board decision with regard to the revocation of the April 2015 notification letter currently before the Board. The Board has no jurisdiction to address any question of CUE in the October 2012 rating decision that revoked the award of SMC under 38 U.S.C. § 1114(k) in the first instance. Accordingly, because there can be no CUE claim addressing the October 2012 RO decision in the first instance, as a matter of law, the CUE claim is appropriately dismissed. See Sabonis v. Brown, 6 Vet. App. 426 (1994). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.