Citation Nr: 22051133 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 19-18 958A DATE: September 8, 2022 ORDER Restoration of a 100 percent rating for rheumatic heart disease from June 1, 2018, for substitution purposes, is granted. Special monthly compensation (SMC) based on the need for aid and attendance or housebound status, for substitution purposes, is denied. FINDINGS OF FACT 1. A June 2016 rating decision which granted a 100 percent rating for rheumatic heart disease did not contain clear and unmistakable error. 2. The Veteran's service-connected rheumatic heart disease was not shown to render him bedridden, confined to his immediate premises, or unable to care for his daily needs without requiring the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for restoration of a 100 percent rating for rheumatic heart disease from June 1, 2018, for substitution purposes, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107, 5109A, 5112; 38 C.F.R. § 3.105. 2. The criteria for SMC based on the need for aid and attendance or housebound status, for substitution purposes, have not been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from August 1943 to August 1945. He died in October 2021. The appellant is his surviving spouse and has been substituted in his place for the purpose of this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision. 1. Restoration of a 100 percent rating for rheumatic heart disease from June 1, 2018 The Veteran was service-connected for rheumatic heart disease with mitral valve involvement and mitral insufficiency. In February 2016, he filed a claim to increase the assigned disability rating for his condition. A June 2016 rating decision assigned a 100 percent rating effective September 4, 2015. This rating was based on private treatment records submitted by the Veteran showing that he underwent an aortic valve replacement as a result of "critical aortic stenosis secondary to longstanding rheumatic heart disease." The rating decision also noted an April 2016 VA examination which determined that the aortic value involvement and insufficiency which led to the replacement was a complication of the service-connected rheumatic heart disease condition. The Veteran underwent a VA examination in July 2017. That examiner opined that the Veteran's aortic heart valve condition was not due to or the result of his rheumatic heart disease. Based on this finding, the Agency of Original Jurisdiction (AOJ) issued an August 2017 rating decision that proposed to reduce the Veteran's assigned rating from 100 percent to 0 percent, based on a clear and unmistakable error (CUE) in the June 2016 rating decision. A January 2018 VA examiner similarly stated that the aortic valve replacement was not a progression of rheumatic heart disease, and the AOJ issued the March 2018 rating decision which implemented the reduction effective from June 1, 2018. The Board finds that this reduction was improper for two reasons. First, as stated in the August 2017 rating decision, the AOJ asserted that there was CUE in the June 2016 rating decision. CUE is determined by three criteria: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be 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 38 C.F.R. § 3.105; Damrel v. Brown, 6 Vet. App. 242 (1994). It has been held that 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The basis for the AOJ's contention that there was CUE in the June 2016 rating decision was a July 2017 VA examiner's opinion regarding the nature and etiology of the Veteran's aortic valve stenosis and replacement. This opinion, as well as the subsequent January 2018 VA opinion, were generated after the June 2016 rating decision, and therefore cannot be considered in deciding whether there was CUE in that rating decision. As noted above, the evidence of record at the time of that decision, namely the September 2015 private records and April 2016 VA examination, both supported the conclusion that the Veteran's aortic valve stenosis was related to his rheumatic heart disease. Therefore, there was no clear and unmistakable error in the June 2016 rating decision. In addition, the Board notes that 100 percent disability rating award was predicated on findings that the Veteran's aortic valve stenosis and replacement were associated with his service-connected rheumatic heart disease. Although styled as a reduction, the March 2018 rating decision determined that the aortic stenosis was not a progression of, or otherwise related to, the rheumatic heart disease. Rather, it was a separate condition associated with age. Put another way, the rating was not "reduced" because evidence showed that manifestations of the Veteran's heart disability did not meet the criteria for the 100 percent rating, but rather because the AOJ determined that aortic stenosis was not service-connected. Substantively, this amounts to a severance of service connection for aortic stenosis rather than a reduction of rheumatic heart disease. Severance of service connection involves criteria which are separate from reduction. 38 C.F.R. § 3.105(d). To the extent that the AOJ substantively severed service connection for aortic stenosis, the Veteran was not provided the required notice, rendering the severance void ab initio. On the merits, severance must still be supported by a finding of CUE, and as discussed above, the record at the time of the June 2016 rating decision actually strongly supported a finding of aortic stenosis secondary to the Veteran's rheumatic heart disease. Even when considering the July 2017 and January 2018 opinions stating otherwise, reasonable minds could still differ on the question of etiology, which precludes a finding of CUE. For these reasons, the reduction of the Veteran's rheumatic heart disease from 100 percent to 0 percent from June 1, 2018, was improper, and restoration of the 100 percent rating, for substitution purposes, is warranted. 2. SMC based on the need for aid and attendance or housebound status SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). A veteran will be considered in need of regular aid and attendance if he or she is: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Initially, the Board notes that the Veteran was only service-connected for rheumatic heart disease, which did not result in any visual impairment, and he was not shown to be in a nursing home at any time during the appeal period. Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); the inability of a veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). The Veteran's only service-connected disability was rheumatic heart disease. VA examinations from July 2017 and January 2018 noted metabolic-equivalent testing (METs) levels of >5-7 and >3-5, respectively. These indicate the Veteran was capable of activities such as brisk walking, light yard work, or using a power mower, from a cardiovascular perspective. A December 2017 disability benefits questionnaire (DBQ) submitted as part of his claim cited multiple nonservice-connected disabilities in addition to heart disease. That DBQ noted that the Veteran could feed himself, prepare his own meals, and manage his own finances. The physician who completed the DBQ noted that the Veteran required assistance with bathing and hygiene, but later stated that he was independent with all activities of daily living and did not have any pathology that would prevent him from performing any task. The evidence indicates that the Veteran subsequently had a stroke. A January 2018 VA examination noted that he experienced right leg numbness and constant dizziness, and used a walker to ambulate. He also had bladder incontinence as a result of the stroke. The examiner noted that he was otherwise able to perform all self-care functions. The Board notes that there is some evidence to indicate that the stroke was related to the Veteran's aortic valve disease. The January 2018 VA examiner stated as much in one portion of her examination report, but in a separate section, noted that an embolism was the etiology. In any case, the Veteran had not been service-connected for his stroke residuals, and therefore they cannot be considered in determining his eligibility for SMC. As a result, the evidence does not show that his rheumatic heart disease, alone, resulted in impairment establishing a factual need for aid and attendance based on the above criteria. Separately, a veteran may receive housebound-rate special monthly compensation if he or she has a service-connected disability rated as permanent and total (but not including total rating based upon unemployability under 38 C.F.R. § 4.17) and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A veteran will be determined to be permanently housebound when he or she is substantially confined to the house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). In this case, the July 2017 VA examination, December 2017 DBQ, and January 2018 VA examination reports also show that the Veteran was not confined to his immediate premises, but rather was capable of leaving his home as he desired. In addition, as discussed earlier, the Veteran was only service-connected for one disability. Therefore, the criteria for SMC at the housebound rate were not met. In conclusion, the evidence of record persuasively weighs against entitlement to SMC based on the need of aid and attendance, or being housebound and the claims is denied for substitution purposes. As the evidence persuasively weighs against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b). J.N. MOATS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.