Citation Nr: A24011458 Decision Date: 03/08/24 Archive Date: 03/08/24 DOCKET NO. 230209-322084 DATE: March 8, 2024 ORDER Entitlement to revision of a September 2009 rating decision on the basis of clear and unmistakable error (CUE) is granted. FINDING OF FACT 1. The Veteran's claim of entitlement to a TDIU was granted in a September 2009 rating decision that became final because he did not submit a notice of disagreement and no new and material evidence was added during the appeal period. 2. Although the correct facts, as they were known at the time, were before the Department of Veterans Affairs (VA) regional office (RO) in September 2009, the statutory or regulatory provisions then extant were not correctly applied, and the failure to correctly apply those laws and regulations manifestly changed the outcome of the September 2009 rating decision. CONCLUSION OF LAW Clear and unmistakable error is shown in the September 2009 RO rating decision to the extent it did not consider the Veteran's eligibility for Special Monthly Compensation (SMC) pursuant to Bradley v. Peake, 22 Vet. App. 280 (2008), and, in turn grant SMC. This rating decision is therefore revised to recognize a TDIU predicated solely on the Veteran's worsening PTSD symptoms beginning April 17, 2008 and, in turn, grant SMC also beginning April 17, 2008. 38 U.S.C. §§ 5109A, 1114(s); 38 C.F.R. §§ 3.105, 3.350(i) (2009) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from June 2004 to December 2005 and from October 2006 to September 2007, with service in Iraq. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2023 Higher-Level Review (HLR) rating decision of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The January 2023 decision addressed the evidence of record at the time of the September 2022 AOJ rating decision, which was issued in response to the Veteran's May 2022 claim. In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the September 2022 AOJ decision that was subject to HLR in the January 2023 AOJ decision on appeal. The Board cannot consider evidence submitted during the period after the AOJ issued the September 2022 AOJ decision that was subject to HLR. 38 C.F.R. § 20.301. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claim of entitlement to revision of a September 2009 rating decision on the basis of CUE. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to revision of a September 2009 rating decision on the basis of CUE The Veteran asserts that there is CUE in the September 2009 rating decision that granted a TDIU beginning January 14, 2008. He contends that he is entitled to SMC beginning April 17, 2008 and that CUE was committed when the RO did not consider and grant entitlement to SMC pursuant to Bradley v. Peake, 22 Vet. App. 280 (2008) beginning April 17, 2008-the date in which he was granted a 70 percent rating for his PTSD and the date in which he obtained a total combined disability rating. Specifically, the Veteran contends that the RO erred in granting a TDIU effective January 14, 2008 to April 17, 2008 and then finding the issue of entitlement to a TDIU to be moot. To this end, the Board agrees. As will be explained, the statutory and regulatory provisions in existence at the time of the September 2009 rating decision required the RO to consider eligibility for a TDIU following the award of a combined schedular 100 percent rating for the purposes of considering eligibility for Special Monthly Compensation (SMC) under 38 U.S.C. § 1114 (s). 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, a September 2009 rating granted a TDIU beginning January 14, 2008, but, in short, did not consider the Veteran's entitlement to a TDIU or SMC beginning April 17, 2008. The Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new evidence and material evidence within one year of its promulgation. Thus, the September 2009 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 Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claims. The Veteran contends that he is entitled to SMC beginning April 17, 2008. At the time of the September 2009 rating decision (as now), special monthly compensation is payable at the housebound rate where the veteran has a single service-connected disability rated as 100 -percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). By way of history, the Veteran applied for a TDIU on April 10, 2008. In his VA Form 21-8940 Application for Increased Compensation Based on Unemployability, he indicated that his service-connected PTSD and OSA prevented him from working. He was then provided a VA examination in August 2008 in which the Veteran was evaluated for a traumatic brain injury (TBI). While the examiner, at the time, determined the Veteran did not suffer from a TBI, they noted that the Veteran was experiencing memory and concentration difficulties which were making it difficult for the Veteran to become a police officer, to include worsening the Veteran's reading/language disability and preventing him from being able to pass a written test for entrance into police academy. The Veteran had been provided a palm pilot by VA to assist with his memory and concentration deficits. The examiner further noted that the Veteran's memory and concentration deficits were determined to be attributable to PTSD. The examiner did not indicate the Veteran's OSA was a contributor to his memory and concentration deficits. The Veteran's August 2008 PTSD examination similarly noted the Veteran's concentration and memory challenges. The examiner further noted impaired executive functioning which was also attributed to PTSD. While OSA was mentioned as an additional diagnosis, none of the Veteran's symptoms were attributed to this condition. Instead, while the Veteran noted sleep difficulties, the examiner noted the Veteran had been prescribed medications related to his PTSD which helped him sleep approximately 8 hours per night. The examiner also noted the Veteran's PTSD caused decreases in work efficiency with intermittent periods of inability to perform occupational tasks. The examiner noted the Veteran displayed difficulty interacting with the public and had a short temper, which was also attributable to his PTSD. VA treatment notes from May 2008 indicated the Veteran's PTSD symptoms were "significant" and, among other things, made it difficult for him to be out in public. He reported experiencing nightmares that made sleeping difficult. There was no mention of OSA. In June 2008, VA treatment records indicate the Veteran was experiencing sleep disturbances attributable to PTSD. The Veteran reported that he had been provided a CPAP machine in 2006 for his OSA and that he had experienced improved sleep since this time. He reported waking up twice a week due to PTSD symptoms. During a sleep medicine appointment in October 2008, the Veteran's doctor noted that the Veteran had "excellent" compliance with his CPAP and has experiencing minimal daytime sleepiness (EDS) due to OSA. The only time the Veteran reported experiencing EDS, was after taking medication to treat his PTSD. Treatment records are silent for evidence the Veteran's OSA impacted his ability to work. In January 2009, the Veteran submitted a lay statement indicating that his PTSD symptoms were making it difficult to seek employment. He submitted an additional statement in February 2009 indicating that he was having difficulty performing activities of daily living (ADLs) and memory impairment due to his PTSD. In an April 2009 VA examination, the Veteran reported he had lost his job as a security guard because he was unable to handle interacting with the public as a result of increased anxiety, depression, and anger management issues. These symptoms are attributable to PTSD, as noted in multiple VA treatment records and as well as examinations. He had worked as a security guard from approximately 2006 to January 2008. He endorsed symptoms including nightmares, anger, sleep issues, anxiety, difficulties with memory and concentration and suicidal ideation. The examiner determined that the Veteran's PTSD symptoms had worsened and resulted in impairment of functional status and vocational limitations. At the time of the September 2009 rating decision, the Veteran was in receipt of a 50 percent rating for his PTSD prior to October 1, 2007 and a 70 percent rating thereafter. He was also in receipt of a 50 percent rating for his obstructive sleep apnea (OSA); a 30 percent rating for his gastroesophageal reflux disease (GERD) beginning October 1, 2007; and a lower back condition, right knee condition, bilateral foot condition, tension headaches, and tinnitus all evaluated at 10 percent. In awarding a TDIU, the September 2009 rating decision noted that the Veteran had work experience as a security guard and had reported he was having ongoing problems with school and vocational training due to his PTSD symptoms. The Rating decision referenced VA treatment records which noted the Veteran's myriad PTSD symptoms and their effect on his ability to pursue vocational training, particularly due to his concentration issues. The Board notes that the Veteran's concentration issues have been attributed multiple times to his PTSD. The rating decision further referenced the Veteran's April 2009 VA examination in which the Veteran was found to have "fairly poor current psychosocial functional status, and quality of life" and daily PTSD symptoms with high severity. The rating decision also noted the Veteran's OSA diagnosis and that he had "contended with sleep problems since service." The rating decision further noted that the Veteran woke frequently and required a continuous airway pressure (CPAP) machine to treat his condition. It did not otherwise identify any specific way the condition affected the Veteran's employability. The rating decision then granted a TDIU effective January 14, 2008 to April 17, 2008. The decision further noted that the Veteran was in receipt of a 100 combined percent evaluation beginning April 17, 2008 and found that the issue of entitlement to a TDIU was therefore moot after this date. At the time of the September 2009 rating decision (as now), special monthly compensation is payable at the housebound rate where the veteran has a single service-connected disability rated as 100 -percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). In June 1999, VA's General Counsel (OGC) issued VAOPGCPREC 6-99 addressing questions of whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). In Bradley v. Peake, 22 Vet. App. 280 (2008), however, the Court, taking a position contrary to the one reached in VAOPGCPREC 6-99, held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. Id. Essentially, Bradley finds that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate). See 38 U.S.C. § 1114 (s) (2012). Consequently, in view of the issuance by the Court of its decision in Bradley, which recognized that it was possible for a veteran first to be awarded TDIU based on a single disability and subsequently receive schedular disability ratings for other conditions that would not duplicate in the count of disabilities for special monthly compensation purposes (that is, separate disabilities that could combine for a 60 percent disability rating), in November 2009 the VA General Counsel partially withdrew VAOPGCPREC 6-99 to the extent it was inconsistent with Bradley. The Board notes that "[a] determination that there was a CUE must be based on the record and the law that existed at the time of the prior . . . decision." Russell v. Principi, 3 Vet. App. 310, 314 (1992). This standard requires that the argument must be based on the law as it was understood at the time of the decision. As mentioned, Bradley v. Peake was issued in 2008 and, therefore, was current law at the time of the September 2009 rating decision. This means that as of 2008, and therefore prior to the issuance of the September 2009, VA recognized that the issue of TDIU was not moot upon receipt of a schedular 100 percent rating because a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. Moreover, entitlement to SMC is an "inferred issue" in the context of an increased rating claim (or here, a TDIU claim) that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley, 22 Vet. App. 280. At the time of the September 2009 rating decision, the record clearly and unmistakably indicates the Veteran's unemployability stemmed solely from the severity of his PTSD symptoms. The record is silent for any evidence that the Veteran's OSA contributed to his unemployability, which both VA treatment records, lay statements, and VA examinations all indicate was the product of the Veteran's increasing concentration difficulties, depressive symptoms, anger management, anxiety, and memory problems-all symptoms attributed to his PTSD. In fact, as note in VA treatment records, the Veteran's sleep medicine doctor specifically noted that the Veteran had reported greatly improved sleep because of wearing his CPAP machine and that his sleep disturbances were specifically attributable to his PTSD. Further, the Veteran was also in September 2009, in receipt of additional disability ratings which included a 50 percent rating for his obstructive sleep apnea (OSA); a 30 percent rating for his gastroesophageal reflux disease (GERD) beginning October 1, 2007; and a lower back condition, right knee condition, bilateral foot condition, tension headaches, and tinnitus all evaluated at 10 percent. These disability ratings separately totaled more than 60 percent at the time of the September 2009 rating decision. Consequently, under Bradley and Akles, both law in 2009, entitlement to SMC must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue. (Continued on the next page) ? Beginning April 17, 2008, while the Veteran was in receipt of a schedular 100 percent total disability rating based on his combined disabilities, the RO clearly and unmistakably erred when it did not then also grant a TDIU solely predicated on the Veteran's PTSD, which was rated 70 percent. The record, including both VA treatment records, the Veteran's lay statements and VA examinations all clearly and unmistakably indicate his unemployability was primarily the result of worsening PSTD symptoms. In addition, the record also clearly indicates the Veteran's remaining disabilities, in combination, resulted in a rating of at least 60 percent. Consequently, but for the RO's misapplication of Bradley, the Veteran would have been awarded a TDIU predicated solely on his PTSD and, in turn, awarded SMC under 38 U.S.C. § 1114(s). Ultimately, having considered the above, the Board finds that the evidence shows that the correct facts were before the RO at the time of the September 2009 rating decision; however, the law was incorrectly applied, so that reasonable minds could not disagree that the September 2009 decision was flawed in that it did not consider entitlement to a TDIU attributable solely to the Veteran's PTSD after April 17, 2008 and ultimately grant SMC under 38 U.S.C. § 1114(s). (Continued on the next page) ? Accordingly, the request for revision of the September 2008 rating decision based on CUE is granted. The Veteran is found entitled to a TDIU solely on the basis of his worsening PTSD symptoms beginning April 17, 2008 and, in turn, that because he also at this time has disabilities independently ratable at 60 percent, separate and distinct from his PTSD, that he is also entitled to SMC pursuant to 38 U.S.C. § 1114(s) also beginning April 17, 2008. Marissa Caylor Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.