Cavc decision

[Mr cue]

 

This is the cavc remand

19-09-416 bva decision

09-19-043 bva decision which I feel should have inferred smc.

I am posting maybe I will help somebody.

 

 

 

 

Self-represented veteran appeals a January 30, 2020, 
Board of Veterans' Appeals (Board) decision that granted entitlement to special monthly 
compensation (SMC) at the housebound rate and based on the need for regular aid and attendance
and assigned May 9 and July 17, 2018, effective dates, respectively. Record (R.) at 3-11.
1
 The 
Board also found that it did not have jurisdiction over a claim for an increased evaluation for Mr. service-connected psychiatric disorder because he did not file a Notice of Disagreement 
(NOD) as to that issue. R. at 5. For the reasons that follow, the Court will reverse the Board's 
finding that Mr. October 2018 NOD did not encompass that portion of a July 5, 2018, 
rating decision granting a 70% evaluation, but no higher, for a psychiatric disorder. The Court 
will also set aside and remand the portion of the January 2020 Board decision denying entitlement 
 
1 The Board also found that Mr.  had withdrawn appeals of the evaluations assigned for his neck and 
left elbow disabilities. R. at 5-6. Because Mr. has not challenged that portion of the Board decision, the appeal 
as to those matters will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining 
to review the merits of an issue not argued and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 
45, 48 (2014) (same). Additionally, the Board's grant of SMC at a minimum of the housebound rate for the period 
from May 9 to July 17, 2018, and at a minimum of the aid and attendance rate from July 17, 2018, is a favorable 
decision that the Court will not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) ("The Court is not 
permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority."), 
aff'd in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App'x 625 (Fed. Cir. 2009).

Mr. served on active duty in the U.S. Army from October to December 1993. R. at 
4099. Prior to the events at issue here, he was granted service connection for neck and left elbow 
disabilities; they are currently assigned 60% and 30% evaluations, respectively. See R. at 8. In 
addition, he was granted a total disability evaluation based on individual unemployability (TDIU), 
effective December 14, 1993, based on the combined impairment resulting from his neck and left 
elbow disabilities. See id.
In May 2018, Mr.filed a claim seeking, among other things, service connection for 
a psychiatric disorder and entitlement to SMC. R. at 1126-29. In accompanying correspondence, 
he specifically asserted entitlement to SMC at the O and R1 levels. R. at 1132. 
In a July 5, 2018, rating decision a VA regional office (RO) granted service connection for 
a psychiatric disability and assigned a 70% evaluation. R. at 499-502. In a July 30, 2018, rating 
decision the RO denied entitlement to SMC. R. at 371-75. In August 2018, Mr.filed a 
Notice of Disagreement (NOD) with both July 2018 rating decisions, specifying entitlement to 
SMC, increased neck and left elbow evaluations, and "all other" issues as those with which he 
disagreed. R. at 355. In accompanying correspondence, he restated his intent to appeal "all 
decision[s] made on [his] claims," noting that two rating decisions were involved, R. at 356, and 
reiterated his belief that he was entitled to SMC at the R1 level, R. at 359.
In April 2019, the RO issued a Statement of the Case (SOC) continuing to deny the request 
for SMC; it did not address the evaluation assigned for Mr. psychiatric disorder. R. at 
226-60. Mr. filed his Substantive Appeal the same month, requesting a hearing and again 
asserting entitlement to compensation at the R1 level. R. at 213-18. 
In July 2019, and at his request, Mr.attended an informal conference in lieu of a 
formal hearing and presented testimony as to his need for aid and attendance. R. at 189-90. In the 
conference report, the decision review officer stated that, although Mr. testified as to the 
effects of his service-connected psychiatric disability, he "did not specifically appeal [that] 
evaluation." R. at 190. The RO issued a Supplemental SOC (SSOC) in October 2019 that continued to deny SMC at any level and did not address the evaluation assigned for Mr.
psychiatric disability. R. at 100-16. 
In the January 2020 decision on appeal, the Board found that Mr.did not appeal the 
portion of the July 5, 2018, rating decision that assigned a 70% evaluation for his psychiatric 
disorder and, therefore, that the issue was not on appeal. R. at 5. 
As for entitlement to SMC, the Board noted that, although Mr. Hester was initially granted 
TDIU based on the combined effects of his neck and left elbow disabilities, he was now separately
entitled to TDIU based solely on his now service-connected psychiatric disorder. R. at 9. The 
Board explained that assigning Mr. TDIU to his psychiatric disorder, instead of to his 
neck and left elbow disorders, would result in a single service-connected disability rated totally 
disabling (TDIU) and additional service-connected disabilities with a combined evaluation of at 
least 60% (neck and left elbow). Id. The Board further explained that, by making that adjustment 
to the basis for Mr. TDIU award, Mr. Hester would be entitled to SMC at the housebound 
rate. Id. The Board then granted SMC at the housebound rate and assigned a May 9, 2018, 
effective date. Id. 
The Board further found that, because Mr. had a paraprofessional home care plan, 
he also qualified for SMC at the higher aid-and-attendance rate, and assigned a July 17, 2018,
effective date for that benefit. R. at 10-11. The Board also considered entitlement to SMC at the 
K and M levels, but found that Mr. did not meet the necessary requirements. R. at 6-11. 
This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr.appeal is timely, and the Court has jurisdiction to review the January 2020
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is 
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board's determination regarding whether a veteran is entitled to SMC is a finding of 
fact subject to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Breniser v. 
Shinseki, 25 Vet.App. 64, 68 (2011); D'Aries v. Peake, 22 Vet.App. 97, 104 (2008); Prejean v. 
West, 13 Vet.App. 444, 447 (2000). "A factual finding 'is "clearly erroneous" when although there 
is evidence to support it, the reviewing court on the entire evidence is left with the definite and 
firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94(1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, "[t]he 
Court reviews de novo whether a certain document constitutes an NOD." Young v. Shinseki, 
22 Vet.App. 461, 466 (2009); see also 38 U.S.C. § 7261(a)(1); Palmer v. Nicholson, 21 Vet.App. 
434, 436 (2007) (finding that whether a document is a valid NOD is "a legal ruling subject to de 
novo review by the Court"). 
The Board must support its material determinations of fact and law with adequate reasons 
or bases. 38 U.S.C. § 7104(d)(1); Pederson, 27 Vet.App. at 286; Allday v. Brown, 7 Vet.App. 517, 
527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, 
the Board must analyze the credibility and probative value of evidence, account for evidence it 
finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence 
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 
604 (Fed. Cir. 1996) (table). It must also discuss all provisions of law and regulation that are made 
"potentially applicable through the assertions and issues raised in the record." Schafrath v. 
Derwinski, 1 Vet.App. 589, 592 (1991); see Robinson v. Peake, 21 Vet.App. 545, 552 (2008) 
(requiring the Board to address all issues explicitly raised by the claimant or reasonably raised by 
the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009).
III. ANALYSIS
Under a liberal construction of his brief, see De Perez v. Derwinski, 2 Vet.App. 85, 86 
(1992), Mr.  argues, among other things, that the Board failed to assign the appropriate 
effective dates for its grant of SMC at the housebound and aid-and-attendance rates, see
Appellant's Informal Brief (Br.) at 3, 9, 14; failed to address whether he was entitled to higher 
levels of SMC, including at the O, R1, and R2 levels, see id. at 2, 10-14; and incorrectly found that 
the evaluation assigned for his psychiatric disorder was not on appeal, see id. at 2, 8-9, 14. The 
Secretary concedes that remand is warranted because the Board improperly assigned SMC 
effective dates in the first instance, Secretary's Br. at 9-10; failed to address Mr. assertions 
that he was entitled to SMC at the O and R levels, id. at 8-9; and failed to provide adequate reasons 
or bases for its finding that his August 2018 NOD did not encompass an appeal of the evaluation 
assigned for his psychiatric disorder, id. at 10-11. For the reasons that follow, the Court agrees 
with the parties that the Board erred in failing to discuss specific higher levels of SMC raised by 
Mr.during the pendency of his appeal and in assigning effective dates in the first instance.However, the Court will reverse the Board's finding that Mr.  August 2018 NOD did not 
include an appeal of the evaluation assigned for his psychiatric disorder.
The Secretary acknowledges that the Board's assignment of SMC effective dates in the first 
instance "effectively deprive[d Mr. ] of the opportunity to have the effective date[s] 
adjudicated by the RO in the first instance," to present additional effective date arguments below, 
and to appeal any such decision to the Board after "full development." Secretary's Br. at 10. 
Claimants are entitled to a decision that is "subject to one review on appeal" to the Board,
38 U.S.C. § 7104, and the RO, as the inferior tribunal, would be unable to issue a decision more 
favorable to Mr.if it contradicted the Board's findings, see Brown v. West, 203 F.3d 1378, 
1381 (Fed. Cir. 2000). Therefore, the Court agrees that the Board's assignment in the first instance 
of effective dates for its grant of SMC at the housebound and aid-and-attendance rates was 
improper and that remand of that portion of the January 2020 Board decision is warranted. See 
Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy 
"where the Board has incorrectly applied the law, failed to provide an adequate statement of 
reasons or bases for its determinations, or where the record is otherwise inadequate").
As for the rates of SMC awarded, the Secretary is correct that Mr.  raised, but the 
Board did not discuss, entitlement to SMC at the O and R levels. See Secretary's Br. at 8-9; R. at 
213-18, 359, 1132; Robinson, 21 Vet.App. at 552. Consequently, the Court agrees that remand of 
that portion of the January 2020 Board decision is also warranted. See Tucker, 11 Vet.App. at 374. 
As for whether the issue of Mr.psychiatric disorder evaluation was in appellate 
status, the Court agrees with the Secretary that the Board failed to adequately address whether that 
matter was encompassed by Mr.August 2018 NOD. See Secretary's Br. at 11. However, 
the Court disagrees as to the appropriate remedy. 
The RO issued two decisions in July 2018. As relevant here, the decision issued on July 
6, 2018, included a grant of service connection for a psychiatric disorder and assigned a 70% 
evaluation. R. at 499-501. Mr. October 2018 NOD specified that he disagreed with both 
July 2018 rating decisions, including not merely the specific issues enumerated, but also "all other" 
issues. R. at 355. Furthermore, in accompanying correspondence he reiterated his disagreement
with "all decision[s] made on [his] claims," noting that there were two decisions involved. R. at
356. The version of 38 C.F.R. § 20.201(a)(4) in effect in October 2018 required that, when 
multiple issues are addressed in the same decision, the claimant "clearly indicate that intent."Therefore, on de novo review, the Court holds that Mr. October 2018 NOD and 
accompanying correspondence clearly indicated his intent to appeal all issues decided in both July 
2018 rating decisions, including the evaluation assigned for his psychiatric disorder. See 38 C.F.R. 
§ 20.201(a)(4) (2018); Rivera v. Shinseki, 654 F.3d 1377, 1382 (Fed. Cir. 2011) (explaining that 
VA is required "to consider the full context within which [veterans'] submissions are made"); 
Collaro v. West, 136 F.3d 1304, 1309-10 (Fed. Cir. 1998) (holding that a general or vague NOD 
may be broad enough to initiate an appeal of the entire rating decision); Jarvis v. West, 12 Vet.App. 
559, 561 (1999) ("In determining whether a written communication constitutes an NOD, the Court 
looks at both the actual wording of the communication and the context in which it was written."); 
see also Young, 22 Vet.App. at 466; Palmer, 21 Vet.App. at 436. Consequently, the Board's 
finding to the contrary will be reversed, see Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) 
("[R]eversal is the appropriate remedy when the only permissible view of the evidence is contrary 
to the Board's decision."), and the issue of entitlement to an initial evaluation in excess of 70% for 
a psychiatric disorder is remanded for further adjudication, see Tucker, 11 Vet.App. at 374.
As for Mr.  additional argument that the Board Chairman erred in denying his 
motion for reconsideration of the January 2020 decision on appeal, see Appellant's Informal Br. at 
2, 7-8, 11-13, he may not ordinarily appeal that denial, see Murillo v. Brown, 10 Vet.App. 108, 
110-11 (1997) (noting that a denial of reconsideration itself ordinarily may not be directly 
appealed); but see Manning v. Principi, 16 Vet.App. 534, 539 (2002). Furthermore, his arguments 
regarding the Chairman's denial relate to the substance of the underlying Board decision, which 
we have reviewed and are remanding. Thus, even when his brief is read liberally, see De Perez, 
2 Vet.App. at 86, he has not presented argument suggesting that the Court has jurisdiction over the 
denial, see Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant has 
the burden of demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). 
Therefore, the Court will not review the denial of his motion. See Engelke v. Gober, 10 Vet.App. 
396, 399 (1997) ("Where a claimant . . . attempts to place before the Court an argument that is best 
reserved for a direct appeal from the underlying [Board] decision, the Court will not review the 
denial of the motion to reconsider.").
Finally, to the extent that Mr.  appears to argue that VA has refused to accept an 
NOD or otherwise process a claim for vocational rehabilitation and employment (VR&E) benefits, 
see Appellant's Informal Br. at 10-11, 14, the Secretary is correct that the January 2020 Boarddecision on appeal did not address any VR&E issues. This Court's jurisdiction derives exclusively 
from statutory grants and is limited to appeals from final decisions of the Board. See 38 U.S.C. 
§ 7252; Breeden v. Principi, 17 Vet.App. 475, 477 (2004). When the Board has not rendered a 
decision on a particular issue, the Court generally has no jurisdiction under section 7252(a) to 
consider the matter. See Evans v. Shinseki, 25 Vet.App. 7, 10 (2011); see also Ledford v. West, 
136 F.3d 776, 779 (Fed. Cir. 1998) (holding that "the court's jurisdiction is premised on and defined 
by the Board's decision concerning the matter being appealed"). Consequently, the Court holds 
that any argument as to a VR&E matter is not properly before the Court at this time.
Given this disposition, the Court need not address any additional arguments, which could 
not result in a remedy greater than remand. In accordance with Kutscherousky v. West, 
12 Vet.App. 369, 372-73 (1999) (per curiam order), Mr. is free to submit any additional 
arguments and evidence on remand, including his assertion that VA failed to obtain relevant 
independent living program records and any other arguments raised in his briefs to this Court. The 
Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 
529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical 
examination of the justification for the [Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394, 
397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
Upon consideration of the foregoing, the portion of the January 30, 2020, Board decision 
finding that Mr.October 2018 NOD did not encompass that portion of the July 5, 2018, 
rating decision granting a 70% evaluation, but no higher, for a psychiatric disorder is REVERSED
and the matter is REMANDED for further adjudication; the portions of the January 30, 2020, 
Board decision denying an effective date before May 9, 2018, for the grant of SMC and entitlement 
to SMC in excess of the housebound rate, from May 9 to July 17, 2018, and at the aid-and-
attendance rate from that point are SET ASIDE and the matters are REMANDED for further 
development, if necessary, and readjudication consistent with this decision; and the balance of the 
appeal is DISMISSED.

[Buck52]

Good read  Long one..but always good to read these long awaited Approvals 

Congratulation Sir   this is how to stick it out  it was worth every dime too!!!

& be sure to check out your Early Effective Dates.

Happy for ya buddy.

[broncovet]

Congratulations!  Since this was a remand, I guess my question is "was the remand productive?"  That is, did you win benefits upon completion of the remand?

Unfortunately, The VA lovves to put Veterans on a remand hamster wheel, where the CAVC remands, the Board denies, the the Veteran appeals, the court remands again, ("to infinity and beyond").  

Maybe Buzz Lightyear applied for VA benefits and was remanded..maybe that is where he got to infinity and beyond!

[Mr cue]

This is the first cavc remand and I am hope I don't end up on the hampster wheel.

I am wait on the letter to see who working it.

But at least it a remand and reverse so I will see how it go