Cavc secretary brief

[Mr cue]

 

This is the only way to copy it but I would think I won. I think there saying I can bring up the smc s howell v nicholson and they must address it this time. I could be wrong.

It's still going to the judge we will see

 

 

Partial vacatur and remand of the Board decision are warranted
First, remand is warranted to the extent that the Board’s decision failed to 
address Appellant’s arguments about entitlement to higher levels of special 
monthly compensation (SMC). Robinson v. Peake, 21 Vet.App. 545, 552 (2008)
(providing that the Board is required to address issues raised by either the 
claimant or the evidence of record), aff’d sub nom. Robinson v. Shi

Cir. 2009). The Board found that Appellant “alleges that he 
requires regular air and attendance and is entitled to SMC at the k, l, m, and s 
levels.” [R. at 6]. The Board addressed SMC at those levels. See [R. at 6-11]. 
However, the Board failed to address numerous statements arguing that 
Appellant is entitled to higher levels of SMC, including SMC-R and O. See, e.g.,
[R. at 1131-32; 414-18; 351]; see also App. Brf. at 2, 3, 10, 14. Thus, remand is 
warranted for the Board to address Appellant’s arguments about entitlement to 
higher levels SMC. 
Second, vacatur of the Board’s assignment of effective dates for the 
granted SMC benefits is warranted because the RO did not initially consider the 
downstream issue of an effective date, and, consequently, no NOD was filed to 
that particular matter, the Board could not have assigned an effective date in the 
first instance. 38 U.S.C. § 511; 38 U.S.C. § 7104(a); see also Disabled Am. 
Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1319 (Fed. Cir. 
2012); Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). 
Here, the Board determined that Appellant was entitled to (1) SMC-S, from 
May 9, 2018 until July 17, 2018, and (2) SMC-L, from July 17, 2018. [R. at 3]. 
But, the RO, in a subsequent decision that implements a Board decision 
regarding the appropriate effective date for these awards, as an inferior tribunal, 
could not make a decision that was contrary to the Board decision. As such, a 
Board decision that assigns an effective date in the first instance could not be 
changed by the RO. See Brown v. West, 203 F.3d 1378, 1381

("[I]t is improper for a lower tribunal . . . to review the decision of a 
higher tribunal."). The Board’s actions effectively deprive Appellant of the 
opportunity to have the effective date adjudicated by the RO in the first instance, 
to make arguments in an NOD that could result in a different outcome during the 
agency adjudication, and the opportunity to have the Board address the issue of 
the effective date after this full development in a potential appeal. Thus, the 
Board's assignment of effective dates here should be vacated and the matters of 
an appropriate effective date should be remanded by the Board so that the RO 
may review the issue in the first instance and allow Appellant the opportunity to 
make arguments about the appropriate effective dates for his awards of SMC-S 
and SMC-L before the agency.
1
Finally, remand is warranted for the Board to provide an adequate 
statement of reasons or base about its finding that Appellant did not appeal the 
part of the July 2018 rating decision that awarded service connection for a 
psychiatric disorder with a 70% rating effective May 9, 2018. 38 U.S.C. 
§ 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). The Board found 
that Appellant “had one year to appeal any aspect of that award (effective date or 
evaluation, but he failed to do so.” [R. at 5]. However, the Board did not address 
the substance of Appellant’s August 2018 NOD that identified areas ofdisagreement as “A&A,” “my elbow & hand upper extremities,” “SMC S and all 
other,” “neck,” and “and all other.” [R. at 347]. Appellant also added that, “I am 
NOD both decision you deferred issue and may two decision on my claims I put 
in.” Id. Thus, remand is warranted for the Board to provide an adequate 
statement of reasons or bases that reconciles its finding that the psychiatric 
disorder claim was not appealed with the substance of the August 2018 NOD.2 
To the extent Appellant appears to make arguments about a Veteran 
Readiness and Employment (VR&E) claim, App. Brf. at 10-11, that claim was not 
on appeal to the Board here. And, to the extent Appellant raises concerns that 
the Board changed a protected rating for TDIU, App. Brf. at 1-6; 8-10; 14, there is 
no indication Appellant’s TDIU award and compensation have been altered. 
Appellant has been in receipt of a TDIU since December 1993 and Appellant has 
been eligible for Chapter 25 benefits since December 1993 with a permanent 
total rating. See, e.g., [R. at 389]. The Board’s shifting of the basis of 
Appellant’s TDIU award was permissible to establish eligibility for SMC-S, in that 
sense benefitted Appellant, and did not impact that actual TDIU rating. See [R. 
at 9] (citing Buie, 24 Vet.App. at 250).
The Secretary submits that the above bases for remand, given the 
expedited nature of his appeal and the discernable arguments raised, appear to 
encompass or address the numerous arguments raised in Appellant’s informal brief.
But the Secretary does not concede any material issue that the Court may 
deem Appellant adequately raised and properly preserved, but which the 
Secretary did not address, and requests the opportunity to address the same if 
the Court deems it necessary.
CONCLUSION