Citation Nr: 21014003 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 20-11 070 DATE: March 11, 2021 ORDER Entitlement to an earlier effective date of July 31, 2008 for the award of special monthly compensation (SMC) based on 38 U.S.C. § 1114 (r)-(1) based on a finding of clear and unmistakable error in a March 2016 rating decision is granted. FINDING OF FACT 1. The March 2016 rating decision that assigned an effective date of June 13, 2013 for the award of entitlement to additional SMC based on § 1114 (r)-(1) became final. 2. The statutory or regulatory provisions governing effective dates then extant at the time were not correctly applied in the March 2016 rating decision, and the failure to correctly apply the laws and regulations manifestly changed the outcome of the decision. CONCLUSION OF LAW 1. The March 2016 rating decision that assigned an effective date of June 13, 2013 for the award of entitlement to additional SMC based on § 1114 (r)-(1) was clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105 (a), 3.401 (a). 2. The criteria for an effective date of July 31, 2008, but no earlier, for additional SMC based on § 1114 (r)-(1) have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400, 3.401 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1955 to June 1958. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a November 2018 rating decision. The Veteran passed away during the pendency of the appeal in August 2013; the Appellant is his surviving spouse. A hearing was held by the undersigned Veterans Law Judge in February 2021. The Board notes that the Appellant and her representative focused their discussion on an issue that is not on appeal to the Board – an earlier effective date of July 1, 2005 rather than August 12, 2005 for entitlement to SMC based on aid and attendance under 38 U.S.C. § 1114 (l). The issue that is on appeal is an earlier effective date prior to June 13, 2013 for entitlement to SMC under § 1114 (r)-(1). As the issue pertains to a prior decision that became final, adjudication requires consideration of clear and unmistakable error (CUE). A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). Here, the March 2016 rating decision awarded entitlement to SMC under § 1114 (r)-(1) and assigned June 13, 2013 as the effective date. As stated above, the Appellant did not file a timely Notice of Disagreement challenging this determination, nor did she submit new evidence and material evidence within one year of its promulgation. Thus, the rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160 (d), 3.156 (b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. As a threshold matter, the Board finds that the arguments advanced by the Appellant allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of her claim. SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. The rate of SMC varies according to the nature of the veteran’s service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114 (k). Additional levels and provisions of SMC are provided at 38 U.S.C. § 1114 (l), (m), (n), (o), (p), (r), (s), and (t). One additional allowance that may be payable to a veteran in need of regular aid and attendance is specified in 38 U.S.C. § 1114 (r)(1), otherwise known as the “R-1 rate.” This additional allowance is payable if the veteran is entitled to compensation under 38 U.S.C. § 1114 (o); or is entitled to the maximum rate authorized under 38 C.F.R. § 1114 (p); or is entitled to compensation at the intermediate rate authorized between the rates authorized under subsections (n) and (o) of 38 U.S.C. § 1114, and at the rate authorized under subsection (k). 38 U.S.C. § 1114 (r)(1). The Board preliminarily notes there is no indication the Veteran experienced the combinations of deafness, blindness, or loss of use of the upper extremities that may serve as alternate predicate foundations for SMC at the R-1 rate. See 38 U.S.C. § 1114 (n), (o), (p). Compensation under 38 U.S.C. § 1114 (o) is warranted, in pertinent part, when the veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more rates provided in one or more subsections (1) through (n) of 38 U.S.C. § 1114, no condition being considered twice. The effective date for an award of compensation based on aid and attendance and housebound benefits, except as provided in 38 C.F.R. § 3.400 (o)(2), is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.401. However, when an award of compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award’s retroactive period for which entitlement to the additional benefit is established. 38 C.F.R. § 3.401. In this case, entitlement to compensation under 38 U.S.C. § 1114 (o) is the prerequisite that qualified the Appellant for the payment of SMC at the R-1 rate. In the March 2016 rating decision, the entitlement was based on account of left hemiplegia and right foot drop, and an effective date of November 18, 2008 was assigned. In a November 2018 rating decision, CUE was found in a September 2013 rating decision erroneously assigning the effective date of service connection for left hemiplegia as November 18, 2008. The corrected effective date was July 31, 2008. Thus, the effective date for entitlement to SMC under § 1114 (o) was also changed to July 31, 2008. The Appellant became entitled to payment of SMC under 38 U.S.C.§ 1114 (l) for need of regular aid and attendance as of August 12, 2005 in a March 2013 Board decision. This qualification, along with § 1114 (o), made the Appellant eligible for SMC at the R-1 rate. The March 2016 rating decision assigned June 13, 2013 as the effective date as that is the date VA received a claim for aid and attendance. However, pursuant to § 3.401, when an award of compensation is effective for a period prior to the date of receipt of the claim, any additional compensation payable by reason of need for aid and attendance shall also be awarded for any part of the award’s retroactive period for which entitlement to the additional benefit is established. Here, the Veteran became service-connected for left hemiplegia as of July 31, 2008, at which time he became eligible for additional compensation under § 1114 (o) and § 1114 (r)(1). Thus, the appropriate effective date for entitlement to SMC at the R-1 rate is July 31, 2008, the date of eligibility. While the Veteran had been entitled to SMC under § 1114 (l) since August 2005, he did not become eligible for SMC under § 1114 (o) until July 31, 2008, when he became service-connected for left hemiplegia. Therefore, the effective date for SMC at the R-1 rate cannot be earlier than July 31, 2008, as that is the date eligibility was met. In sum, the March 2016 rating decision made a clear and unmistakable error as a statutory or regulatory provision in existence at the time (§ 3.401) was not applied, and the correct effective date for SMC at the R-1 rate is July 31, 2008. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.