Citation Nr: A21017756 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 210920-187143 DATE: November 3, 2021 ORDER Entitlement to an effective date of April 12, 2011, but no earlier, for special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), based on a finding of clear and unmistakable error (CUE) in the April 2013 rating decision that granted a 60 percent rating for duodenal ulcer effective April 12, 2011, is granted. FINDINGS OF FACT 1. Beginning April 12, 2011, the Veteran met the criteria for SMC at the housebound rate. 2. The statutory and regulatory previsions extant at the time of the April 2013 rating decision were incorrectly applied to the record as it existed then, resulting in an undebatable error, the sort which, had it not been made, would have manifestly changed the outcome of the decision. CONCLUSIONS OF LAW 1. The April 2013 rating decision that granted a 60 percent rating for duodenal ulcer effective April 12, 2011, was clearly and unmistakable erroneous. 38 U.S.C. § 5109(A) (2018); 38 C.F.R. § 3.105 (2020). 2. The criteria for the assignment of an effective date of April 12, 2011, but no earlier, for SMC at the housebound rate are met. 38 U.S.C. §§ 1114(s), 5110 (2018); 38 C.F.R. §§ 3.350(i), 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from May 1954 to July 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2021 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The August 2021 rating decision constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In September 2021, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal, and selected the Direct Review lane. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Effective Date - SMC In an August 2021 decision, the Board granted entitlement to SMC pursuant to 38 U.S.C. §1114(s). In that decision, the Board found that the Veteran's entitlement to a total disability rating based on individual employability (TDIU) was based on a single service-connected disability, i.e., a lumbar spine disability. The Board also found that the Veteran had an additional 60 percent rating for a service-connected disability (duodenal ulcer to include hiatal hernia) that was separate and distinct from the lumbar spine disability and involved a different anatomical segment or bodily system. Therefore, he met the criteria for SMC at the housebound rate. See 38 U.C.S. § 1114(s); 38 C.F.R. § 3.350(i)(1). In an August 2021 rating decision, the AOJ implemented the Board's decision by granting entitlement to SMC at the housebound rate. The AOJ assigned an effective date of August 21, 2014, based on the date the Veteran filed a claim for SMC. In September 2021, the Veteran filed a notice of disagreement (NOD) with the effective date assigned. He argues that he is entitled an effective date of August 13, 1998; the date he filed a claim for TDIU. The Board notes that VA's duty to maximize a claimant's benefits includes consideration of whether his or her disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. at 280, 294 (2008). Thus, when the Veteran filed his claim for a TDIU in August 1998, VA had a duty to not only consider whether he was entitled to a TDIU, but also whether a grant of TDIU also entitled him to SMC at the housebound rate. In a December 1999 rating decision, the RO granted entitlement to TDIU effective August 13, 1998, based on a single service-connected disability, i.e., a lumbar spine disability. The Veteran, however, did not meet the criteria for SMC at the housebound rate because he did not have an additional service-connected disability or disabilities independently ratable at 60 percent. At that time, he was additionally service connected for a duodenal ulcer (rated at 10 percent), and a hiatal hernia (rated at 10 percent), i.e., a combined rating of only 20 percent. See 38 C.F.R. § 4.25. On April 12, 2011, the Veteran filed a claim for an increased rating for his duodenal ulcer. In an April 2013 rating decision, the RO increased the rating to 60 percent effective April 12, 2011. In his April 2014 claim, the Veteran argued that the RO's failure to consider whether he was entitled to SMC at the housebound rate was CUE. He argued that the issue of entitlement to SMC was reasonable raised by the record in connection with his April 12, 2011 increased rating claim for his service-connected duodenal ulcer. The Board agrees. At the time of the April 2013 rating decision, the Veteran was receiving a TDIU based on a single service-connected disability, i.e., a lumbar spine disability. Furthermore, when the RO granted a 60 percent rating for his service-connected duodenal ulcer, it had a duty to maximize his benefits by considering whether he was entitled to SMC at the housebound rate. The RO failure to do so was an undebatable error that was outcome determinative, i.e., CUE. 38 C.F.R. § 3.156(c). In other words, had the RO fulfilled its duty to maximize benefits by considering entitlement to SMC, it would have found that the Veteran met the criteria for SMC at the housebound rate beginning April 12, 2011. Accordingly, an effective date of April 12, 2011, for SMC at the housebound rate is warranted. Prior to April 12, 2011, however, the evidence does not indicate that the Veteran had a single service-connected disability rated as 100 percent and an additional service-connected disability or disabilities independently ratable at 60 percent. Therefore, an effective date prior to April 12, 2011, for SMC at the housebound rate is denied. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.