Citation Nr: 21014678 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-23 389 DATE: March 15, 2021 ORDER The appeal concerning whether there was a clear and unmistakable error (“CUE”) in a November 2012 rating decision, which failed to award entitlement to special monthly compensation (“SMC”), is dismissed. REMANDED Entitlement to special monthly compensation (“SMC”) at the housebound rate prior to October 31, 2019 is remanded. FINDING OF FACT November 2012 rating decision is not final, hence all adjudications, concerning whether there was a clear and unmistakable error in the November 2012 rating decision that failed to award entitlement to SMC, were improper. CONCLUSION OF LAW The November 2012 rating decision is not final; therefore, there is no question of law or fact on appeal regarding whether there was CUE in November 2012 rating decision, which failed to award entitlement to SMC. 38 U.S.C. §§ 1114, 7104, 7105; 38 C.F.R. §§ 3.105, 20.104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to August 1973. This matter comes before the Board of Veterans’ Appeals (“Board”) on appeal from November 2012 and December 2013 rating decisions issued by the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Veteran timely appealed the November 2012 and December 2013 rating decisions to the Board. In November 2018 decision, the Board denied the claim finding that there was no CUE in November 2012 rating decision, which had not awarded entitlement to SMC, and that the Veteran was not entitled to SMC under 38 U.S.C. § 1114(s)(1). The Veteran timely appealed the Board’s November 2018 decision to the United States Court of Appeals for Veterans Claims (“CAVC”). CAVC reversed the Board’s November 2018 decision and remanded the case to the Board. The appeal concerning whether there was a clear and unmistakable error in a November 2012 rating decision, which failed to award entitlement to special monthly compensation (“SMC”), is dismissed. In November 2012, following a Board decision of September 2012, the RO issued an implementing rating decision in which it increased the schedular rating for the Veteran’s service-connected post-traumatic stress disorder to 70 percent from May 22, 2007; increased his schedular rating for his service-connected left chest shrapnel wounds with muscle atrophy in Muscle Group IV and lower upper extremity limitation of motion, to 40 percent from September 30, 2008; and changed the effective date of total disability rating based on individual unemployability to October 1, 2008. In March 2013, the Veteran filed a notice of disagreement (“NOD”) with the November 2012 rating decision asserting that there was clear error based on VA’s failure to award SMC under 38 U.S.C. § 1114(s)(1). In a deferred rating decision of September 2013, the RO found that the NOD was not valid as the issue of special monthly compensation had never been considered. In October 2013, the RO sent a letter to the Veteran advising him that the NOD could not be accepted, but that it had been accepted as a claim for benefits. Subsequently, a new rating decision was issued in December 2013 finding that there was no CUE in November 2012 rating decision, which did not consider or award SMC. The RO stated that “In our Rating Decision of November 27, 2012, Individual Unemployability was granted for both your service connected PTSD and your service connected history of left chest shrapnel wounds with muscle atrophy in muscle group IV and left upper extremity limitation of motion. Individual Unemployability was not established for a single service connected disability. Housebound benefits are payable for a single service connected disability rated as totally disabling with additional service connected disability(ies) independently ratable at 60 percent, separate and distinct from the totally disabling service connected disability. You do not meet this criteria.” The Veteran timely appealed the matter to the Board. In its November 2018 decision, the Board determined that the November 2012 rating decision was final, and there was no CUE in November 2012 rating decision; and that the Veteran was not entitled to SMC under 38 U.S.C. § 1114(s)(1) under the facts of this case. The Veteran timely appealed the Board’s November 2018 decision to CAVC. In its July 2020 memorandum decision, CAVC determined that the Board had to find that the November 2012 rating decision was final to reach the question of CUE in this decision. See 38 C.F.R. § 3.105. CAVC reversed the Board’s finding that the November 2012 rating decision was final and remanded the matter for the Board to remand the matter for the RO to properly consider the Veteran’s March 2013 NOD. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 20.104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The Board can only review an adjudicative determination. Determination means a final decision by a court or administrative agency. See Shipley v. Shinseki, 24 Vet. App. 458, 461 (2011). The Board notes that even though RO briefly discussed the underlying entitlement to SMC in CUE determination in February and March 2016 statements of case, however the issue of entitlement to SMC at the housebound rate was not specifically adjudicated. CAVC has concluded that the November 2012 rating decision is not final and thus, all of the CUE adjudications were improper to begin with. Consequently, the appeal concerning whether there was a clear and unmistakable error in November 2012 rating decision, which failed to award entitlement to special monthly compensation, is hereby dismissed. REASONS FOR REMAND Entitlement to special monthly compensation (“SMC”) at the housebound rate prior to October 31, 2019 is remanded. In reversing the Board’s finding that the November 2012 rating decision was final, in its July 2020 memorandum decision, CAVC directed the Board to remand the matter for the RO to properly consider the Veteran’s March 2013 NOD and entitlement to SMC. The Board notes that recently in a February 2020 rating decision, the RO granted special monthly compensation based on housebound and loss of use with an effective date October 31, 2019. However, since that does not cover the entirety of the appeal period, the issue of entitlement to SMC at the housebound rate with an effective date prior to October 31, 2019 remains on appeal. Hence, the Board is recharacterizing the issue as seen above to allow for the most favorable review of the evidence and the claim. See Brokowsi v. Shinseki, 23 Vet. App. 79 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). Consequently, a remand is warranted per CAVC directions to properly consider the claim of entitlement to special monthly compensation by the RO at first instance. The matter is REMANDED for the following action: 1. Properly consider the Veteran’s claim for entitlement to special monthly compensation and adjudicate the matter at first instance pursuant to CAVC July 2020 decision and this remand. Take all necessary steps to complete the adjudication process. The RO should address whether at any time prior to October 31, 2019, the Veteran had a single service connected disability rated as totally disabling with additional service connected disability(ies) independently ratable at 60 percent, separate and distinct from the totally disabling service connected disability. The adjudication should not apply the clear and unmistakable error standard. 2. Thereafter, if the benefit sought remains denied issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.