Citation Nr: 21026966
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 17-32 400
DATE: May 4, 2021

REMANDED

Entitlement to revision of an August 23, 1995, rating decision that denied special monthly compensation (SMC) based on statutory housebound status and the need for regular aid and attendance, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Air Force from November 1985 to December 1986.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). 

The Veteran testified at a March 4, 2021 videoconference hearing held before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the electronic claims file.

The Veteran asserts CUE in an August 1995, rating decision that denied SMC based on statutory housebound status (under 38 U.S.C. § 1114(s)) and the need for regular aid and attendance (under 38 U.S.C. § 1114(l)).  Judicial review by the Board is frustrated as the May 2015 rating decision and June 2017 Statement of the Case did not address the Veteran's CUE assertions, and were thus ineffective and nonresponsive, depriving the Veteran of a full and fair opportunity for the adjudication of his claim.  

Specifically, the analysis contained therein did not address the Veteran's contention that the RO did not consider lay statements of record from his relatives regarding the frequency and severity of the service-connected seizures, and his required assistance in preparing meals, changing clothes, and bathing.  Consequently, the question of whether the August 1995 rating decision contained CUE must be remanded for adjudication by the Agency of Original Jurisdiction (AOJ) in the first instance.  "[E]ach wholly distinct and different CUE theory underlying a request for revision is a separate matter and, when attacking a prior [AOJ] decision, each must be presented to and adjudicated by the [AOJ] in the first instance and, if not, the Board lacks jurisdiction over the merits of the matter."  Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006).  

To the extent that the Veteran asserted CUE in his initial assigned rating of 10 percent for his service-connected seizures that stemmed from his reported January 1987 claim, the Veteran is invited to submit a motion for revision for that respective determination.  

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The matter is REMANDED for the following action:

Adjudicate the issue of entitlement to revision of an August 23, 1995, rating decision that denied SMC based on statutory housebound status and the need for regular aid and attendance, on the basis of CUE pursuant to 38 C.F.R. § 3.105.  In doing so, ensure that all of the Veteran's contentions are addressed regarding the errors he contends exist in this decision.

 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G.A. Ong, 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.