Citation Nr: 21072909 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 20-14 856 DATE: December 6, 2021 ORDER As termination of a total rating based on individual unemployability due to service-connected disability (TDIU) was proper, restoration of a TDIU for the appeal period is not warranted. FINDING OF FACT The correct facts, as they were known at the time of the March 2017 decision (which granted TDIU effective March 2016) were before the RO, but the statutory or regulatory provisions extant at the time were not correctly applied. CONCLUSION OF LAW The March 2017 rating decision was clearly and unmistakably erroneous. 38 U.S.C. § 5109A, 5313(c); 38 C.F.R. § 3.104, 3.105, 3.341(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1965 to October 1969. This matter comes before the Board of Veterans' Appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2020 decision, the Board denied restoration of the Veteran's TDIU benefits, concluding that the termination was proper. Subsequently, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans' Claims (Court), which pursuant to an August 2021 Joint Motion for Partial Remand (JMPR), vacated the Board's decision to the extent the Veteran's claim was denied, and remanded the matter for further consideration. Whether the termination of TDIU benefits in the April 2017 rating decision was proper By way of history, the Veteran submitted an application for a TDIU that was received by VA in December 2016. A March 2017 rating decision granted, among other things, a TDIU with an effective date of March 17, 2016. Information received from a state Department of Corrections indicated that the Veteran had been incarcerated since December 6, 2011, with a release date not before November 2017. In an April 2017 decision, the RO determined that the previous March 2017 decision contained clear and unmistakable error (CUE) in its grant of TDIU and Chapter 35 benefits due to the Veteran's incarceration. The decision explained that federal regulation prohibits an initial grant of TDIU benefits during incarceration of the Veteran and that the March 2017 decision granting TDIU was, thus, in error. In December 2017, the Veteran notified VA that he had been released from prison on November 9, 2017. VA verified the Veteran's release information. In July 2018, the Veteran again applied for TDIU benefits, which were denied in a November 2018 rating decision based on a failure of the Veteran to return a completed VA Form 21-8940, in order for VA to consider the claim. The Board notes that VA's correspondence to the Veteran requesting a VA Form 21-8940 was returned as undeliverable from the U.S. Postal Service. The Veteran did not appeal this decision, and instead filed a Notice of Disagreement (NOD) regarding the December 2017 decision which terminated TDIU benefits based on CUE. As such, the Board has jurisdiction only to determine whether the March 2017 rating decision involved CUE. Under 38 C.F.R. § 3.341(b), a rating for TDIU which would first become effective while a veteran is incarcerated in a Federal, State or local penal institution for conviction of a felony, shall not be assigned during such period of incarceration. 38 U.S.C. § 5313(c). This phrase has been interpreted to prohibit adjudication of TDIU if that TDIU rating would begin during a period in which a veteran is incarcerated for conviction of a felony. VAOPGCPREC 13-97 (Apr. 7, 1997). The Veteran's application for a TDIU, and the RO's initial grant, occurred during his incarceration, according to documents obtained by VA. The provisions concerning revisions of decisions under 38 C.F.R. § 3.105 specifically do not apply when the evidence establishes that service-connection was clearly illegal. 38 C.F.R. § 3.105. Clear and unmistakable error is a term that applies when 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 the 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. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-314 (1992) (en banc). In the current appeal, at the time of the March 2017 rating decision, VA was in receipt of documents from a state Department of Corrections reflecting his incarceration from December 2011, with a release date no earlier than November 2017. These documents were added to the claims file in October 2016, with additional copies incorporated in November 2016 and February 2017. The law is clear that a TDIU cannot be granted if that TDIU rating would begin during a period in which a veteran is incarcerated for conviction of a felony. This was the law at the time of the March 2017 decision. Thus, the evidence establishes that a grant of TDIU with an effective date of March 2016 was clearly illegal, as the Veteran was incarcerated on a felony conviction from the time his claim was received in December 2016 and had been since 2011. It was an undebatable error for the RO to grant a TDIU from March 2016, because VA was in receipt of confirmation of his incarceration, and the TDIU provisions were incorrectly applied because the law is clear and undebatable that a TDIU shall not be granted during such period of incarceration. 38 U.S.C. § 5313(c). Therefore, the Board finds that CUE had been made in the March 2017 decision. Termination of a TDIU was, thus, proper, and restoration of such benefits is denied. In an August 2021 JMR, the parties agreed that the Board erred in not addressing whether the Veteran's December 2017 letter titled "Parole Release Plan" is new and material evidence received within one year of the April 2017 rating decision that found CUE with the March 2017 rating decision such that the claim for a TDIU remained pending under 38 C.F.R. § 3.156(b). However, the April 2017 rating decision determined that there was CUE present in the March 2017 rating decision and 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. Evidence received in December 2017 that the Veteran had been released from prison on November 9, 2017 was not before the adjudicators at the time of the March 2017 rating decision and the March 2017 rating decision made a decision based upon the record and law that existed at the time of its issuance. By definition the December 2017 letter cannot constitute new and material evidence for purposes of determining whether there was CUE in the March 2017 rating decision. Therefore, evidence received in December 2017 cannot constitute new and material evidence to determine whether CUE was present in a March 2017 rating decision. This contention is without merit. In an August 2021 JMR, the parties agreed that the Board should address whether, by notifying VA of his contention that he was entitled to a TDIU in December 2017, specifically his contention that he should be awarded entitlement to a TDIU from the date of his release from incarceration in November 2017, the Veteran effectively re-opened his claim for a TDIU. However, this statement cannot constitute an informal claim as VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary as of March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This argument is without merit. To the extent that the Veteran may be eligible for a TDIU rating for the period after his incarceration, the law does not require that VA reconsider a TDIU claim that is denied based on incarceration. Further, the Veteran filed a new application for a TDIU after his period of incarceration ended. As discussed above, this matter is not on appeal. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.