Citation Nr: 21003834 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-31 321A DATE: January 25, 2021 REMANDED Entitlement to revision of the September 2008 rating decision on the basis of clear and unmistakable error (CUE) is remanded. Entitlement to special monthly compensation (SMC) based on housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 1972 to February 1976 and in the United States Army from January 1979 to March 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In a November 2018 decision, the Board remanded the Veteran’s claim for revision of the September 2008 rating decision granting service connection for status post left thoracotomy for a granuloma and rating it alongside service-connected bronchial asthma based on CUE, as well as a claim for SMC based on housebound status. The Veteran and his representative alleged that revision of the September 2008 rating decision was warranted because, at the time, he had been in receipt of service connection for bronchial asthma for over 20 years. Thus, they argued, the disability rating for bronchial asthma was protected, and the RO should have assigned a separate rating for the newly service-connected status post left thoracotomy for granuloma. If the RO had done this, they asserted, the Veteran would have been entitled to SMC benefits by reason of having, in addition to a single, permanent service-connected disability rated 100 percent disabling, a service connected disability or disabilities independently evaluated at 60 percent or more disabling that (1) was separate and distinct from the 100 percent disability, and (2) involved different anatomical segments or body systems. However, the RO had not yet addressed this theory of entitlement to revision of the September 2008 rating decision based on CUE. As such, the Board remanded the matter in its November 2018 decision so that the RO could adjudicate the claim in the first instance. As the outcome of the claim for SMC was inextricably intertwined with the outcome of the CUE claim, the Board remanded the SMC claim as well. Subsequently, the record indicates that in July 202 the RO issued a rating decision denying entitlement to revision of the September 2008 rating decision based on CUE. However, it does not appear from the record that the RO sent the Veteran a letter notifying him of the rating decision or informing him of his rights to appeal that decision within one year from the date of the notice letter. On the same day the RO issued the rating decision, it also issued a supplemental statement of the case (SSOC) denying entitlement to revision of the September 2008 rating decision based on CUE and entitlement to SMC. The language used in the SSOC was nearly identical to the language used in the rating decision. Thereafter, the RO re-certified the claims to the Board. As set forth in greater detail in the Board’s September 2020 remand decision, however, the RO prematurely re-certified the matters to the Board. To that end, the RO had committed a procedural error when it simultaneously adjudicated the CUE issue in a rating decision and an SSOC but failed to notify him of his appellate rights with respect to the rating decision before returning the matters to the Board. To cure this procedural defect, the Board directed the RO to notify the Veteran of the July 2020 rating decision denying entitlement to revision of the September 2008 rating decision based on CUE and to advise him of his appellate rights. Significantly, the Board advised the RO that the claim should not be returned unless and until the Veteran had perfected a timely appeal of the decision to the Board. The Board also instructed the RO to readjudicate the SMC issue after it had taken appropriate action on the CUE claim. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with those remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). At this juncture, however, the RO has not substantially complied with these remand instructions. A review of the record reflects that additional remand is thus warranted. The Board notes that in October 2020 the RO sent the Veteran a letter notifying him that “the July 9, 2020 Rating decision with letter of July 9, 2020 denied entitlement to revision of the September 2008 rating decision denying entitlement to revision of the September 2008 rating decision granting service connection for status post left thoracotomy for granuloma and assigning a rating alongside already service-connected bronchial asthma based on CUE” (emphasis added). In addition to this sentence being difficult to understand and confusingly worded, the RO appeared to imply that the Veteran had already received a letter notifying him of the July 2020 rating decision. However, as set forth in the Board’s prior decision and the October 2020 brief by the Veteran’s representative, the Veteran has never received any prior notification letter regarding the July 2020 rating decision or, for that matter, a copy of the July 2020 rating decision. Moreover, the Board notes that the CUE claim has once more been returned to the Board, despite this procedural step being premature. This is in direct contravention of the Board’s previous remand instructions, which state that the matter should not be returned to the Board unless the Veteran perfects a timely appeal to the Board. Additionally, the Board notes that the RO issued an SSOC readjudicating the issue of entitlement to SMC based on housebound status in October 2020 before re-certifying this issue to the Board. However, as explicitly stated in the September 2020 remand instructions, the issue of entitlement to SMC is inextricably intertwined with the issue of whether revision of the September 2008 rating decision is warranted due to CUE. Because the RO has not yet substantially complied with the remand instructions in connection with the CUE issue, it was also premature for them to readjudicate the inextricably intertwined SMC issue and return it to the Board. Accordingly, the matters are REMANDED for the following action: 1. Send the Veteran a copy of the July 2020 rating decision denying revision of the September 2008 rating decision that granted service connection for status-post left thoracotomy for granuloma and rated it alongside service-connected bronchial asthma based on CUE. Additionally, notify the Veteran and his representative of the July 2020 rating decision and his right to appeal the decision within one year of the date of the notification letter. This claim should not be returned to the Board unless the Veteran subsequently perfects a timely appeal of the rating decision to the Board. 2. After completion of the above and any other development deemed necessary, readjudicate the claim for SMC based on housebound status, if necessary. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, Associate 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.