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Pr - Check This Out - Smc/s

re: independently ratable

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#1 carlie

 
carlie

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Posted 22 April 2012 - 01:55 PM

pr and others,
This is quite a cue case I think I've found here - good for this vet that kept fighting.

I think there maybe some info here for you on the old M21-1 instruction in relationship to
SMS/S and disability that is independently ratable (for the plus 60 percent), that goes back to your
time frame.

Hope something here is helpful - if not - it's still a great read.

http://www.va.gov/ve...es1/0008627.txt


Citation Nr: 0008627
Decision Date: 03/31/00 Archive Date: 04/04/00

DOCKET NO. 97-10 859 ) DATE

On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California

THE ISSUE

Entitlement to an effective date prior to October 27, 1995,
for an increase in special monthly compensation, including
the issue of whether a February 1973 rating decision was
clearly and unmistakably erroneous in denying entitlement to
special monthly compensation in excess of that specified in
38 U.S.C.A. § 1114(k) (West 1991) (formerly 38 U.S.C.
§ 314(k) (1970)).



REPRESENTATION

Appellant represented by: Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

N. W. Fabian, Counsel


INTRODUCTION

The veteran had active duty from January 1969 to December
1970. These matters come to the Board of Veterans' Appeals
(Board) from a December 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO). In
that rating decision the RO granted special monthly
compensation for the loss of use of both hands pursuant to
38 U.S.C.A. § 1114(m) and increased the special monthly
compensation to the next higher level, payable at the rate
specified in 38 U.S.C.A. § 1114(n), based on additional
service-connected disabilities rated as 100 percent or more
disabling. The RO established the effective date for the
increase in the special monthly compensation as August 9,
1996. The veteran perfected an appeal of that decision in
terms of the RO's failure to grant special monthly
compensation at the higher rate payable pursuant to
38 U.S.C.A. § 1114(o), and the effective date established for
the increase in special monthly compensation.

In an August 1997 rating decision the RO revised the
effective date for the increase in special monthly
compensation to October 27, 1995. The veteran contends that
he is entitled to an effective date in 1972 for the increase
in the special monthly compensation. The Board finds,
therefore, that the issue of the effective date for the
increase in the special monthly compensation remains in
contention. See Fenderson v. West, 12 Vet. App. 119 (1999)
(a claim remains in controversy if less than the maximum
benefit is awarded).

The veteran's appeals were previously before the Board in
March 1999, at which time the Board denied entitlement to
special monthly compensation at the higher rate payable
pursuant to 38 U.S.C.A. § 1114(o), and denied entitlement to
an effective date prior to October 27, 1995, for the grant of
special monthly compensation at the rate specified in
38 U.S.C.A. § 1114(n). The veteran appealed the Board's
March 1999 denial of increased special monthly compensation
to the Court of Appeals for Veterans Claims (formerly the
Court of Veterans Appeals) (Court) and, as the result of a
stipulated agreement between the parties, in an October 1999
order the Court dismissed the appeal.

In the March 1999 decision the Board also remanded to the RO
the issue of entitlement to an effective date prior to
October 27, 1995, for the grant of special monthly
compensation at the rate payable pursuant to 38 U.S.C.A.
§ 1114(s). In a November 1999 supplemental statement of the
case the RO found that a February 1973 rating decision was
not clearly and unmistakably erroneous in denying entitlement
to special monthly compensation in excess of that payable
pursuant to 38 U.S.C.A. § 1114(k), and denied entitlement to
special monthly compensation at the rate payable pursuant to
38 U.S.C.A. § 1114(s) effective January 1, 1972. The issue
of the veteran's entitlement to an effective date prior to
October 27, 1995, for an increase in special monthly
compensation beyond that payable pursuant to 38 U.S.C.A.
§ 1114(k) has been returned to the Board.


FINDINGS OF FACT

1. In December 1970 the veteran submitted a claim for VA
compensation for all of the burn residuals resulting from a
May 1970 in-service injury, and that claim remained pending
until February 1974.

2. In a February 1973 rating decision the RO assigned a
70 percent disability rating for loss of use of the right
hand; a 50 percent rating for severe burns of the face,
eyelids, and ears; a 40 percent rating for burns of the left
hand; a 10 percent rating for defective vision due to burns;
and a noncompensable rating for burn scars to the left axilla
and thorax; and granted entitlement to special monthly
compensation pursuant to 38 U.S.C.A. § 1114(k) for the loss
of use of the right hand. The February 1973 rating decision
did not become final.

3. In a February 1974 rating decision the RO denied
entitlement to special monthly compensation at the rate
payable pursuant to 38 U.S.C.A. § 1114(s) for having a single
disability rated at 100 percent and additional disabilities
independently ratable at 60 percent.

4. The February 1974 rating decision was clearly and
unmistakably erroneous in failing to establish service
connection and assign a 40 percent rating for third degree
burns to the back and thorax, a 40 percent rating for burn
scars to the left arm, a 40 percent rating for burn scars to
the right arm, and a 30 percent rating for third degree burn
scars to the left thigh, with all ratings effective January
1, 1972.

5. In accordance with the law in effect in February 1973,
the combined disability ratings for the right and left upper
extremities constitute a single service-connected disability
rated at 100 percent, and the additional disabilities of the
head and face, back and thorax, and left thigh are
independently ratable at 60 percent or more.

6. The February 1973 rating decision was clearly and
unmistakably erroneous in failing to grant entitlement to
special monthly compensation at the rate payable pursuant to
38 U.S.C.A. § 1114(s) for having a single service-connected
disability rated at 100 percent and additional service-
connected disabilities independently ratable at 60 percent.



CONCLUSION OF LAW

The veteran is entitled to an effective date of January 1,
1972, for the grant of special monthly compensation pursuant
to 38 U.S.C.A. § 1114(s) (formerly 38 U.S.C.A. § 314(s)) for
having a single service-connected disability rated at
100 percent and additional service-connected disabilities
independently ratable at 60 percent. 38 U.S.C. § 4005©
(1970), 38 U.S.C.A. §§ 5109A, 5110(a) and (b) (West 1991);
38 C.F.R. §§ 4.16, 19.153 (1972), 38 C.F.R. § 3.400(k)
(1999); Veterans' Benefit Administration Manual M21-1,
Paragraph 50.38 (June 25, 1965).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Factual Background

The veteran's service medical records show that in May 1970
he was injured in a helicopter crash, resulting in second and
third degree burns with 55 percent skin loss over his body.
He had second degree burns on the face, anterior neck, both
upper and lower extremities, and the posterior thorax. The
burns to the arms, chest, back and face were characterized as
severe. He had third degree burns involving the left
buttock, the forearms, and both ears. He also suffered a
corneal burn to the right eye. Following the initial injury
he was hospitalized for 14 months, during which he underwent
extensive treatment, including multiple skin grafts. The
trunk and lower extremities were used as grafting sites. He
experienced considerable weight loss and muscle wasting, and
was noted to have severe contractures in the fingers of both
hands, stiffening in the wrists and elbows of both arms,
facial deformities secondary to scar formation, cartilagineus
tissue loss in the ears, and contractures of the scars about
the mouth and eyes.

The veteran claimed entitlement to VA compensation for the
residuals of the May 1970 accident in December 1970.
Examination in May 1971 revealed that parts of both external
ears were missing, and that he had alopecia, flexion
contractures of the 4th and 5th digits on the left hand,
flexion contracture of the 3rd digit on the right hand, a
flexion contracture of the left anterior axilla, a corneal
burn injury, burn scars over the face and upper body, and
ectropion of the lower eyelids.

In a June 1971 rating decision the RO granted service
connection for multiple burns of the face, neck, upper
extremities, and posterior thorax and alopecia and assigned a
100 percent pre-stabilization disability rating for the
disorders pursuant to 38 C.F.R. § 4.28.


A June 1971 VA hospital summary shows that on admission in
November 1970 the veteran had healing burns over the face and
scalp; bilateral lower ectropion; partial absence of the
auricle, bilateral; burn scars over most of the anterior and
posterior chest; contractures of both wrists; contracture of
the left anterior axillary fold; and flexion contractures of
the four digits of the right hand and the fourth and fifth
digits of the left hand. As a result of the burn injuries
the veteran continued to undergo debridement of the burn
wounds and skin grafts to the arms, the legs, the scalp, the
left shoulder, and the chest. He also had release of the
contractures of the 2nd, 3rd, 4th, and 5th digits of the right
hand and release of the ectropion of both lower eyelids. On
discharge from the hospital he was scheduled for additional
surgeries to release contractures of the 4th and 5th digits on
the left hand, reconstruction of the commissure of the mouth,
and release of the contracture of the left shoulder.

A VA examination of the right hand in October 1971 revealed
flexion contractures in the fingers of the right hand, with
movement of the metacarpophalangeal (MCP) joints to
90 degrees, movement of the proximal interphalangeal (PIP)
joints to 20 degrees, and ankylosis of the distal
interphalangeal (DIP) joints at 90 degrees. There was also
severe flattening of the muscles in the palm of the right
hand so that the right hand resembled an "ape" hand, with
55 percent of the right hand covered by a skin graft. The
thumb could be extended to 30 degrees and abducted to
40 degrees.

Examination of the left hand showed that the PIP joint of the
left little finger was fixed at 95 degrees of flexion and the
PIP joint of the left ring finger was fixed at 130 degrees of
flexion. The DIP joints of the left little and ring fingers
were fixed at 85 and 60 degrees, respectively. The motion of
the thumb was limited to zero degrees of extension and
20 degrees of abduction. No abnormalities of the left index
and middle fingers were noted. Skin grafts covered
50 percent of the left hand, and the left hand also appeared
as an "ape" hand, due to the absence of the muscles in the
palm of the hand.

Scarring across the left anterior chest and axilla to the
left arm resulted in the left shoulder being fixed at
150 degrees of abduction, with no further movement possible.
The veteran also had marked burn contractures of the entire
face, residual scarring over the cornea of the right eye,
moderate ectropion of both lower eyelids, partial absence of
both external ears, and visual acuity of 20/40 in the right
eye and 20/20 in the left eye. The ophthalmology examiner
characterized the visual deficit due to the corneal scarring
as moderate to marked, and marked cosmetic disability due to
the damage to the eyelids.

In a December 1971 rating decision the RO terminated the
100 percent pre-stabilization rating and granted service
connection and separate disability ratings for the following:
severe burns of the face, eyelids, and ears, rated as
50 percent disabling; residuals of third-degree burns of the
right hand, rated as 50 percent disabling; residuals of burns
of the left hand, rated as 20 percent disabling; defective
vision due to burns, rated as 10 percent disabling; and
residuals of burns to the left axilla and left thorax, rated
as noncompensable. The veteran was also granted a total
disability rating based on individual unemployability. The
RO determined that the veteran had not lost the use of any
extremity or his vision, and denied entitlement to special
monthly compensation and an automobile allowance.


The veteran appealed the denial of entitlement to an
automobile allowance, and was provided an additional
examination in February 1973. The report of the February
1973 VA examination shows that he reported having pain and a
loss of dexterity in his fingers in cold weather, and that
his knees ached if he walked a long distance. He indicated
that he could bend only the MCP joints in the right hand, and
that the little and ring fingers on the left hand were
frozen. He reported having limited movement of the thumb on
the left hand. He also reported that he was able to drive a
car and that he could button his clothing, but that he was
unable to carry a suitcase because he lacked the strength and
could not hold onto the handle with either hand.

On examination, he was able to walk without difficulty. The
examiner noted that he had extensive healed scars with
disfigurement resulting from the burns involving the face,
the upper extremities, the trunk, and, to a lesser extent,
the lower extremities. The examiner provided photographs
documenting the extent of the scarring. Those photographs
show that the scarring on the right upper extremity extended
from the fingers to the right axilla, including the entire
circumference of the upper extremity, and that the scarring
on the left upper extremity extended from the fingers to the
upper part of the left shoulder and included the entire
circumference of the left arm. In addition, the veteran had
scarring over the left third of the back, from shoulder to
waist, extending around the left side, and including the left
side of the abdomen from the nipple to the waist,
approximately one-fourth the area of the abdomen and chest.
The burn scars covered the front and sides of the neck and
throat, the entire face, and the front part of the scalp.
Parts of both external ears were missing, and he had
noticeable deformity of the mouth, nose, and both eyes. He
also had a burn scar covering half the anterior portion of
the left thigh from the groin to the knee, and what appears
to be skin graft scars on one-third the anterior portion of
the left thigh.

The examiner found that the veteran had essentially free
motion in the wrists, the forearms, the elbows, and the
shoulders. Examination of the lower extremities revealed
full movement of the knee joints, with no instability, and
some atrophy of the left thigh.

Examination of the right hand revealed free motion at the MCP
joints and the interphalangeal joint of the thumb. The DIP
and PIP joints of all the fingers of the right hand were
ankylosed at varying degrees of flexion, including 90 degrees
of ankylosis of the DIP joints of the index, middle, and ring
fingers. The veteran could oppose the tip of the thumb to
the tips of the fingers, but lacked free abduction of the
thumb. He was unable to make a fist with the right hand, and
on flexion the fingers lacked one inch of reaching the palm.
The grip strength in the right hand was described as quite
weak, with generalized atrophy of the muscles of the hand.

Examination of the left hand showed a prominent deformity of
the thumb, with the musculature at the thenar eminence
essentially missing, residual scarring, subluxation of the
MCP joint, and very limited motion of the thumb. The
function of the index and middle fingers was described as
good, with practically free motion, but the ring and little
fingers were ankylosed in complete flexion and without
function. The palm was also prominently atrophied, including
the hypothenar eminence and the thenar musculature.

In a February 1973 rating decision the RO increased the
disability rating for the right hand from 50 to 70 percent
and increased the disability rating for the left hand from 20
to 40 percent. In addition, the RO determined that the
veteran had lost the use of the right hand, and special
monthly compensation was granted at the rate payable pursuant
to 38 U.S.C.A. § 1114(k) for the loss of use of one hand.
The increased ratings and the special monthly compensation
were effective January 1, 1972, on termination of the
100 percent pre-stabilization rating previously assigned in
accordance with 38 C.F.R. § 4.28. The RO also granted an
automobile allowance, based on the permanent loss of use of
the right hand.

In March 1973 the RO notified the veteran that his request
for an automobile allowance had been approved, but did not
notify him of the increased ratings or the special monthly
compensation.

A January 1974 VA medical report, which was prepared in
conjunction with the veteran's claim of entitlement to
special monthly compensation, indicates that he lacked grip
strength and fine motor movement in the hands, but that he
was able to feed, bathe, and clothe himself, with no arm
limitations. He complained of pain in the knees and had
scars on the lower extremities, but he had full movement of
the joints and normal weight bearing and balance. The
examiner found no limitations in the veteran's ability to
perform self-care or to ambulate.

Based on this evidence, in a February 1974 rating decision
the RO denied entitlement to special monthly compensation
based on the need for regular aid and attendance, for being
housebound, or for having one permanent disability rated at
100 percent and additional disabilities rated at 60 percent.
The veteran submitted a notice of disagreement with this
decision in April 1974, and in July 1974 he asserted that he
was entitled to the rate specified in 38 U.S.C.A. § 1114(s)
because the scars on his legs had not yet been rated.


The report of a September 1974 examination shows that he
complained of pain and difficulty walking due to skin
grafting about both hips and both knees. Examination
revealed that the areas of the legs from the knees to the
ankles were free of burns, but that the areas had been used
as donor skin sites. Areas over the patellae of both knees
and the anterior-lateral aspect of both thighs had been skin
grafted, and undamaged areas of the thighs had also been used
as skin donor sites. The range of motion of the hips and
knees was described as good, with pain at the extremes of
motion. Examination of the left hand showed the deformities
that have been previously described. The examiner also
provided photographs of the left hand and both lower
extremities. Those photographs document the presence of
scarring over the entire anterior surface of both thighs and
both knees.

In a November 1974 rating decision the RO granted service
connection for burn scars of the right and left lower
extremities, and assigned 10 percent ratings for each
extremity. The RO also confirmed the denial of special
monthly compensation. The RO issued a statement of the case
to the veteran in November 1974, but he did not file a
substantive appeal in response to the statement of the case,
and the February 1974 and November 1974 decisions in which
special monthly compensation was denied became final.


In August 1992 the veteran claimed entitlement to service
connection for orthopedic problems, which he claimed resulted
from the burn scars. Following additional VA examinations,
in a June 1993 rating decision the RO granted service
connection for partial ankylosis of the left and right
shoulders, each rated as 10 percent disabling, effective in
August 1992.

In October 1995 the veteran claimed entitlement to service
connection for a bilateral elbow disorder, and claimed
increased ratings for the scars on his arms, back, left leg,
and left thigh. Following an additional examination, in a
March 1996 rating decision the RO granted service connection
for burn scars on the back, and assigned a 20 percent rating
for the disorder; granted service connection for burn scars
of the bilateral arms, and assigned a 10 percent rating for
each arm; and granted service connection for burn scars of
the bilateral knees, rated as noncompensable.

In a May 1996 statement the veteran expressed disagreement
with the March 1996 decision.

In a June 1996 medical report the veteran's VA physician
provided a detailed description and drawings of the burn
scars resulting from the in-service injury. He provided an
estimate of the areas of coverage on the left and right
hands, the left and right upper arms, the left and right
forearms, the anterior and posterior neck, the left chest,
the left side of the back, the right side of the back, the
left anterior thigh, the left knee, the right knee, and the
right posterior calf.

In a July 1996 rating decision the RO increased the rate of
special monthly compensation to the level payable for a
veteran with one disability rated as totally disabling and
having additional disabilities that were rated as 60 percent
or more disabling, in accordance with 38 U.S.C.A. § 1114(s).
The increase in the special monthly compensation was based on
an opinion from the VA General Counsel in February 1994
holding that a total disability rating based on individual
unemployability should be considered a 100 percent disability
rating for the purposes of 38 U.S.C.A. § 1114(s). VAOPGCPREC
2-94. The effective date of the grant of special monthly
compensation was in October 1994, one year prior to the
veteran's October 1995 claim for an increased rating.
38 C.F.R. § 3.114.


In August 1996 the veteran claimed entitlement to an increase
in the rate of special monthly compensation based on the loss
of use of the left hand. In a September 1996 rating
decision, based on an August 1996 medical report, the RO
determined that the veteran had lost the use of the left
hand, as well as the previously-adjudicated right hand, and
increased the disability rating for the combined loss of use
of both hands to 100 percent. The RO also increased the rate
of special monthly compensation to the level for the loss of
use of both upper extremities, below the elbow level,
pursuant to 38 U.S.C.A. § 1114(m), with an additional
intermediate increase in the special monthly compensation for
having additional disabilities rated as 50 percent disabling
in accordance with 38 C.F.R. § 3.350(f)(3). The effective
date of the increased rating and increase in the special
monthly compensation was in August 1996. Adjudication of the
issue of increased disability ratings for the burn scars on
the remainder of the veteran's body, which he contended
should be rated higher, was deferred pending an additional VA
examination.

Following the September 1996 rating decision and notice to
the veteran, in September 1996 he withdrew his appeal of the
March 1996 rating decision.

The veteran was provided a VA examination in October 1996 for
the purpose of documenting the extent and severity of the
burn scars. In conjunction with the examination he
complained of facial disfigurement, pain and stiffness in his
elbows and knees, muscle spasms in the back and neck, and a
loss of manual dexterity. The examiner documented the extent
of the third-degree scarring on the head, neck, chest, back,
and extremities, covering 65 percent of his body area. The
examiner also provided photographs documenting the extent and
severity of the scarring. With the exception of a more
detailed photograph documenting the extent of the scarring on
the right thigh, right side of the chest and abdomen, and the
back of the neck, those photographs are essentially identical
to the photographs previously provided.

In a December 1996 rating decision the RO increased the
disability rating for severe burns of the face, eyelids, and
ears from 50 to 80 percent; increased the rating for severe
burns of the back and thorax from 20 to 30 percent; and
increased the rating for burn scars of the right lower
extremity from 10 to 30 percent. The RO also increased the
special monthly compensation to a full step increase over and
above the rate payable for the loss of use of both hands,
payable pursuant to 38 U.S.C.A. § 1114(m), for having
additional disabilities rated as 100 percent disabling
pursuant to 38 C.F.R. § 3.350(f)(4). With the increase
granted in December 1996, the rate of special monthly
compensation was determined to be equivalent to the rate
payable pursuant to 38 U.S.C.A. § 1114(n). The effective
date of the increased ratings and the increase in the special
monthly compensation was in August 1996. The veteran
appealed the December 1996 decision.

In his February 1997 notice of disagreement the veteran
stated that he was entitled to higher disability ratings for
the burn scars, based on the extent of the scarring
documented in the VA examinations. He also claimed that the
extent of the scarring warranted an increase in his special
monthly compensation to the maximum rate payable in
accordance with 38 U.S.C.A. § 1114(o). He further stated
that the effective date of the increase in the special
monthly compensation was incorrect, but he did not indicate
what effective date he believed to be appropriate. In his
March 1997 substantive appeal he made reference only to the
effective date.

In an August 1997 rating decision, the RO revised the
effective date for the increase in the special monthly
compensation payable at the 38 U.S.C.A. § 1114(n) rate from
August 1996 to October 27, 1995, the date on which the
veteran initially claimed entitlement to an increased rating.
In an October 1997 substantive appeal the veteran expressed
disagreement with the effective date assigned in the August
1997 rating decision, but he did not define the correct
effective date.

In a June 1998 rating decision the RO granted service
connection for post-traumatic stress disorder, rated as
70 percent disabling; tinnitus, rated as 10 percent
disabling; limited motion of the right and left elbows, rated
as 30 and 20 percent disabling, respectively; and increased
the disability ratings for right and left shoulder ankylosis
from 10 to 30 and 20 percent, respectively.

In July 1998 statements the veteran continued to disagree
with the disability ratings assigned for the burn scars to
each arm, the left knee, the right knee, the lower eye lid
ectropion, and the neck. He claimed that the disability
ratings should be retroactive to 1972 because clear and
unmistakable error occurred in the prior rating decisions, in
that the medical evidence showed that he had scars over half
his body, but that the RO had failed to assign the
appropriate disability ratings for the burn scars.


In a September 1998 rating decision the RO increased the
disability ratings for the burn scars to the following areas:
each arm was increased from 10 to 40 percent; the left thigh
was increased from 20 to 30 percent; the right knee was
increased from zero to 10 percent; the left knee was
increased from zero to 20 percent; and the back and thorax
were increased from 30 to 40 percent. The RO also determined
that clear and unmistakable error had not occurred in the
February 1973 rating decision for failure to assign the
proper disability ratings for the burn scars, but established
an effective date of January 1, 1972, for the increased
ratings for the burn scars. The RO found that clear and
unmistakable error had not occurred because increasing the
disability ratings for the burn scars would have no impact on
the combined disability rating, which had been determined to
be 100 percent since the veteran's separation from service.




During a January 1999 hearing before the undersigned, the
veteran asserted that the effective date for the previously
awarded increase in his special monthly compensation should
be retroactive to 1972 because he had a 100 percent rating
for loss of use of his hands, and additional disabilities
rated as 100 percent or more disabling.

II. Laws and Regulations

Except as otherwise provided, the effective date of an award
based on an original claim or a claim for an increase shall
be fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of the claim. 38 U.S.C.A.
§ 5110(a) and (b)(2). The effective date of service
connection based on a finding that a prior decision contained
clear and unmistakable error is the date from which benefits
would have been payable if the corrected decision had been
made on the date of the reversed decision. 38 C.F.R.
§ 3.400(k).

A decision of the RO becomes final and binding and is not
subject to revision on the same factual basis in the absence
of clear and unmistakable error. Where evidence establishes
such error, the prior decision will be reversed or amended.
38 U.S.C. § 4005© (1970); 38 C.F.R. § 19.153 (1972); now
codified at 38 U.S.C.A. §§ 5109A, 7105; 38 C.F.R. §§ 3.105,
20.1103.

The determination of whether a decision was based on clear
and unmistakable error requires a three-pronged analysis: 1)
either the correct facts, as they were known at the time,
were not before the adjudicator, rather than a disagreement
on how the facts were interpreted, or that the pertinent
statutory or regulatory provisions were incorrectly applied;
2) the error must be UN-debatable, and of the type that, had
it not been made, would have manifestly changed the outcome
of the case at the time it was made; 3) the determination of
whether a decision contained clear and unmistakable error
must be based on the record and law that existed at the time
the decision was rendered. Damrel v. Brown, 6 Vet. App. 242
(1994), citing Russell v. Principi, 3 Vet. App. 310 (1992).

In order to raise a valid claim of clear and unmistakable
error, the veteran must specifically indicate what the error
is and, unless clear on its face, he must also provide
persuasive reasons why the decision would have been
manifestly different but for the error. See Fugo v. Brown,
6 Vet. App. 40, 44 (1993), en banc review denied Feb. 3, 1994
(per curium); see also Baldwin v. West, 13 Vet. App. 1, 7
1999) (if it is not absolutely clear that a different result
would have ensued, the error complained of cannot be clear
and unmistakable).

If the veteran fails to identify the specific error or does
not show, assuming his allegations to be true, that the
outcome of the case would have been manifestly different, the
claim that a prior decision was based on clear and
unmistakable error should be denied as a matter of law. See
Luallen v. Brown, 8 Vet. App. 92, 96 (1995). If the veteran
raises a valid claim of clear and unmistakable error, the
question of whether a given decision was based on clear and
unmistakable error is to be determined based on the facts of
the case. See Rivers v. Gober, 10 Vet. App. 469 (1997).

According to the regulation in effect in February 1973,
special monthly compensation was payable at a specified rate
if the veteran had a single service-connected disability
rated at 100 percent under regular schedular criteria and he
had additional 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 functions.
38 U.S.C. § 314(s) (1970); 38 C.F.R. § 3.350(i) (1972).

The provisions of the Veterans Benefit Administration Manual
M21-1 (Manual M21-1) showed that in defining "single
disability," the provisions of Paragraph No. 16 of the rating
schedule applied. The Manual M21-1 also showed that the
independent 60 percent or more disability was determined
based on a regular evaluation based on the rating schedule.
The disabilities of 60 percent or more had to be separate and
distinct from the single 100 percent disability and had to
involve separate anatomical segments or bodily systems.
Although the rating schedule provided that separate
evaluations be made for each diagnosis relating to a single
bodily system, when such diagnoses covered a single
functional entity and were all parts of a common disability,
they could not be considered as being independently ratable.
Within these limitations, however, the fact that a
100 percent disability and an independent 60 percent
disability resulted from a common etiological agent, such as
single injury, did not preclude entitlement. Manual M21-1,
Paragraph 50.38 (June 25, 1965). The Court has held that
substantive rules contained in Manual
21-1 are binding on VA. See Montalvo v. Brown, 7 Vet. App.
312 (1995).

Paragraph 16 of the rating schedule indicated that
disabilities of one or both upper extremities, one or both
lower extremities, disabilities resulting from common
[color=#000000]etiology or a single accident, disabilities affecting a [/color]
[color=#000000]single body system, or multiple injuries incurred in action [/color]
[color=#000000]were considered to be a single disability. 38 C.F.R. § 4.16 [/color]
[color=#000000](1972). [/color]

[color=#000000]III. Analysis [/color]

[color=#000000]The Board finds that in his December 1970 application for VA [/color]
[color=#000000]compensation the veteran claimed entitlement for all of the [/color]
[color=#000000]residuals resulting from the May 1970 helicopter accident. [/color]
[color=#000000]The medical evidence of record at that time documented the [/color]
[color=#000000]extent of the burn scars, but the RO did not adjudicate all [/color]
[color=#000000]of the service-connected injuries. The Board also finds, [/color]
[color=#000000]therefore, that the December 1970 claim remained opened in [/color]
[color=#000000]terms of the burn scars for which service connection was [/color]
[color=#000000]later established. See Jones v. West, 12 Vet. App. 98 (1998) [/color]
[color=#000000](an un-adjudicated claim remains pending for the purpose of [/color]
[color=#000000]establishing an effective date of entitlement). [/color]

[color=#000000]Because the veteran was not notified of the ratings assigned [/color]
[color=#000000]in the February 1973 rating decision, that decision did not [/color]
[color=#000000]become final in terms of the applicable ratings and his [/color]
[color=#000000]entitlement to special monthly compensation. Best v. Brown, [/color]
[color=#000000]10 Vet. App. 322 (1997). The veteran was, however, notified [/color]
[color=#000000]of the February 1974 denial of entitlement to an increase in [/color]
[color=#000000]the special monthly compensation. Although he filed a notice [/color]
[color=#000000]of disagreement in response to that decision, he did not file [/color]
[color=#000000]a substantive appeal following the issuance of the statement [/color]
[color=#000000]of the case. The February 1974 decision is, therefore, [/color]
[color=#000000]final. 38 U.S.C. § 4005©; 38 C.F.R. § 19.153. [/color]

[color=#000000]The Board finds that the veteran has raised a valid claim of [/color]
[color=#000000]clear and unmistakable error in the February 1974 rating [/color]
[color=#000000]decision. He asserted that evidence of the extent of his [/color]
[color=#000000]scarring was before the rating agency, but that the [/color]
[color=#000000]regulations were not properly applied in granting service [/color]
[color=#000000]connection and assigning ratings for all of the documented [/color]
[color=#000000]scarring. Although the grant of service connection and the [/color]
[color=#000000]assignment of individual ratings would have no impact on his [/color]
[color=#000000]overall disability rating, which was 100 percent, he has [/color]
[color=#000000]shown that the outcome of the case would have been manifestly [/color]
[color=#000000]different, in that entitlement to special monthly [/color]
[color=#000000]compensation based on the provisions of 38 U.S.C. § 314(s) [/color]
[color=#000000]would have been warranted had all of his documented injuries [/color]
[color=#000000]been properly rated. Damrel, 6 Vet. App. at 242. [/color]

[color=#000000]The Board also finds that the scope of the veteran's appeal [/color]
[color=#000000]of the effective date assigned for the special monthly [/color]
[color=#000000]compensation awarded in December 1996 includes the [/color]
[color=#000000]subordinate issue of whether the prior rating decisions in [/color]
[color=#000000]which entitlement to special monthly compensation was denied [/color]
[color=#000000]were based on clear and unmistakable error. Although the [/color]
[color=#000000]veteran did not specifically raise the issue of clear and [/color]
[color=#000000]unmistakable error in his February 1997 notice of [/color]
[color=#000000]disagreement, he clarified the scope of his appeal in [/color]
[color=#000000]statements submitted in July 1998. In those statements he [/color]
[color=#000000]asserted that he was entitled to an effective date in 1972 [/color]
[color=#000000]because the prior decisions were clearly and unmistakably [/color]
[color=#000000]erroneous. In the September 1998 rating decision the RO [/color]
[color=#000000]expressly addressed the issue of clear and unmistakable error [/color]
[color=#000000]in the February 1973 rating decision, and provided the [/color]
[color=#000000]veteran the regulation pertaining to clear and unmistakable [/color]
[color=#000000]error in the November 1999 supplemental statement of the [/color]
[color=#000000]case. The Board finds, therefore, that it has jurisdiction [/color]
[color=#000000]of the issue of whether the prior decisions were based on [/color]
[color=#000000]clear and unmistakable error. See Buckley v. West, [/color]
[color=#000000]12 Vet. App. 76 (1998) (the Board has jurisdiction over all [/color]
[color=#000000]issues that are appropriately identified from the radix of [/color]
[color=#000000]the notice of disagreement); see also Bernard v Brown, 4 Vet. [/color]
[color=#000000]App. 384 (1993) (the Board is precluded from considering [/color]
[color=#000000]issues not previously addressed by the RO). [/color]

[color=#000000]The Board further finds that the February 1974 rating [/color]
[color=#000000]decision was clearly and unmistakably erroneous for failing [/color]
[color=#000000]to grant service connection and assign disability ratings for [/color]
[color=#000000]all of the scarring that resulted from the burns incurred in [/color]
[color=#000000]the May 1970 helicopter crash. The medical evidence of [/color]
[color=#000000]record when the February 1974 decision was rendered clearly [/color]
[color=#000000]showed that in the crash the veteran incurred severe burns to [/color]
[color=#000000]the arms, chest, back, face, left buttock, the forearms, and [/color]
[color=#000000]both ears. The trunk and lower extremities were also used as [/color]
[color=#000000]grafting sites. See Crippen v. Brown, 9 Vet. App. 412, 421 [/color]
[color=#000000](1996) (the failure to consider highly probative evidence [/color]
[color=#000000]violates 38 C.F.R. § 3.303(a), which requires that an [/color]
[color=#000000]adjudication be based on all of the evidence of record). [/color]

[color=#000000]The photographs taken during the February 1973 examination [/color]
[color=#000000]documented that the scarring on the right upper extremity [/color]
[color=#000000]extended from the fingers to the right axilla, including the [/color]
[color=#000000]entire circumference of the upper extremity, and that the [/color]
[color=#000000]scarring on the left upper extremity extended from the [/color]
[color=#000000]fingers to the upper part of the left shoulder and included [/color]
[color=#000000]the entire circumference of the left arm. In addition the [/color]
[color=#000000]veteran had a scar covering the left third of the back, from [/color]
[color=#000000]shoulder to waist, extending around the left side, and [/color]
[color=#000000]including the left side of the abdomen from the nipple to the [/color]
[color=#000000]waist, approximately one-fourth the area of the abdomen and [/color]
[color=#000000]chest. The burn scars covered the front and sides of the [/color]
[color=#000000]neck, the entire face, and the front part of the scalp. [/color]
[color=#000000]Parts of both external ears were missing, and he had [/color]
[color=#000000]noticeable deformity of the mouth, nose, and both eyes. He [/color]
[color=#000000]also had a burn scar covering half the anterior portion of [/color]
[color=#000000]the left thigh from the groin to the knee, and what appears [/color]
[color=#000000]to be skin graft scars on one-third the anterior portion of [/color]
[color=#000000]the left thigh. [/color]

[color=#000000]The Board notes that the rating criteria for disfiguring [/color]
[color=#000000]scars of the head, face, or neck and second and third degree [/color]
[color=#000000]burn scars were the same in February 1973 as shown in the [/color]
[color=#000000]rating schedule in September 1998. 38 C.F.R. § 4.118, [/color]
[color=#000000]Diagnostic Codes 7800-7802 (1972) and (1998). In the [/color]
[color=#000000]September 1998 rating decision the RO determined that the [/color]
[color=#000000]scarring of each arm warranted a 40 percent rating; that the [/color]
[color=#000000]scars on the left thigh warranted a 30 percent rating; that [/color]
[color=#000000]the scar on the right knee warranted a 10 percent rating; [/color]
[color=#000000]that the scar on the left knee warranted a 20 percent rating; [/color]
[color=#000000]and that the scarring of the back and thorax supported a [/color]
[color=#000000]40 percent rating. The increased ratings for all of the burn [/color]
[color=#000000]scars were made effective January 1, 1972, following the [/color]
[color=#000000]termination of the 100 percent pre-stabilization rating [/color]
[color=#000000]previously assigned. [/color]

[color=#0000ff]In accordance with 38 C.F.R. § 4.16 (1972), for the purpose
of determining whether the veteran had a "single" disability
rated at 100 percent, the disabilities of one or both upper
extremities constituted a "single" disability, including the
bilateral factor. The effect of the September 1998 rating
decision was to establish ratings for the right upper
extremity of 70 percent for loss of use of the right hand and
40 percent for the burn scars. The ratings for the left
upper extremity are 40 percent for the flexion contractures
of the hand and 40 percent for the scarring. After combining
these percentages pursuant to 38 C.F.R. § 4.25, the bilateral
factor of 10 percent is applied. The single combined rating
for the upper extremities, therefore, is 100 percent. [/color]

[color=#000000]In addition to the ratings assigned for the upper [/color]
[color=#000000]extremities, the evidence of record when the February 1974 [/color]
[color=#000000]decision was rendered showed that the veteran had scarring of [/color]
[color=#000000]the face and head, back, thorax, and both thighs, and that he [/color]
[color=#000000]had defective vision. The head and facial scarring was rated [/color]
[color=#000000]as 50 percent disabling and the defective vision was rated as [/color]
[color=#000000]10 percent disabling in the February 1973 decision. In the [/color]
[color=#000000]September 1998 rating decision the RO assigned a 40 percent [/color]
[color=#000000]rating for the back and thorax scarring, and a 30 percent [/color]
[color=#000000]rating for scars on the left thigh. [/color]

[color=#000000]The RO in the September 1998 decision also granted service [/color]
[color=#000000]connection and assigned ratings for additional disabilities. [/color]
[color=#000000]The Board does not find, however, that the evidence of record [/color]
[color=#000000]in February 1974 clearly established such entitlement so as [/color]
[color=#000000]to have made the February 1974 decision clearly and [/color]
[color=#000000]unmistakably erroneous as to those disabilities. Crippen, [/color]
[color=#000000]9 Vet. App. at 421. [/color]

[color=#0000ff]As the result of the September 1998 rating decision, the
combined rating for the disabilities that were documented in
February 1974 exceeds 60 percent. The disabilities are
independently ratable because they pertain to different
functional entities. Although they arose from a common
etiology, that restriction does not apply in determining
whether the disabilities are independently ratable for the
purpose of determining whether the veteran has additional
disabilities rated at 60 percent or more. Manual M21-1,
Paragraph 50.38.

The Board finds, therefore, that the evidence clearly shows
that effective January 1, 1972, the veteran had a "single"
service-connected disability rated at 100 percent, and
additional disabilities rated at 60 percent or higher.
Because there was compelling evidence of record establishing
that the veteran was entitled to the assigned ratings, the RO
committed clear and unmistakable error in failing to grant
service connection and assign the proper ratings. Crippen,
9 Vet. App. at 421. The RO also erred in failing to grant
special monthly compensation for having a single disability
rated at 100 percent and additional disabilities
independently rated at 60 percent. The Board has determined,
therefore, that the veteran is entitled to an effective date
of January 1, 1972, for the grant of special monthly
compensation at the rate payable pursuant to 38 U.S.C.A.
§ 1114(s) (formerly 38 U.S.C. § 314(s)).


ORDER

An effective date of January 1, 1972, is awarded for the
grant of special monthly compensation at the rate payable
pursuant to 38 U.S.C.A. § 1114(s), subject to the laws and
regulations pertaining to the payment of monetary benefits. [/color]


[color=#000000]Mark D. Hindin [/color]
[color=#000000]Member, Board of Veterans' Appeals [/color]




[color="#000000"]GO TO THE LINK FOR MORE INFO - FONT & CODE KEEPS MESSING UP.[/color]
[color="#000000"]carlie[/color]

Edited by carlie, 22 April 2012 - 02:48 PM.
font size and code


#2 Philip Rogers

 
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Posted 23 April 2012 - 05:52 AM

Thanks, Carlie!!! I've read it once and am confused already. Anytime they introduce all those dates, disabilities and percentages, I feel like I just got off a merry-go-round and am confused. I'll keep trying.

pr

#3 Teac

 
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Posted 23 April 2012 - 06:06 AM

I've read it very carefully... I think other than it being a very interesting case, and that it took the va a loooong time to grant the claim... that it doesn't apply to Philips situtation.

It didn't seem to address Philip's situtation one way or the other......in terms of how to count the 60% for SMC's.

#4 broncovet

 
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Posted 23 April 2012 - 06:50 AM

While I am not extremely familiar with PR's case, it does seem to address this issue in this paragraph, from the cited case:

........

"5. In accordance with the law in effect in February 1973,
the combined disability ratings for the right and left upper
extremities constitute a single service-connected disability
rated at 100 percent,"
end of case quote.
......Unless something changes, this court would allow a combined rating, from the same disability, to combine to 100% for SMC purposes.

#5 broncovet

 
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Posted 23 April 2012 - 07:01 AM

The case did NOT stipulate, however, whether those disabilities above 100 are combined or added, at least, prior to the laws in effect in 1973.

The date "disclaimer" may be important, here. Remember this is Cue, and that is why the effective date of the laws is important, because to be "CUE" the error has to be based on the laws at the time the error was committed.

This "date disclaimer" suggests the board is interpreting Bradley vs Peake very favorably to Veterans...of course, the higher courts could overturn this BUT...the VA cant appeal cases at the BVA level..only the Veteran can.

Edited by broncovet, 23 April 2012 - 07:04 AM.


#6 Teac

 
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Posted 23 April 2012 - 12:50 PM

The case did NOT stipulate, however, whether those disabilities above 100 are combined or added, at least, prior to the laws in effect in 1973.

The date "disclaimer" may be important, here. Remember this is Cue, and that is why the effective date of the laws is important, because to be "CUE" the error has to be based on the laws at the time the error was committed.

This "date disclaimer" suggests the board is interpreting Bradley vs Peake very favorably to Veterans...of course, the higher courts could overturn this BUT...the VA cant appeal cases at the BVA level..only the Veteran can.


Disclaimer?

I didn't see it that way.. the court is deciding a CUE claim .. it would have cited the date of the original claim in any case... However,

Based upon my research I agree that the BVA is deciding cases of SMC Housebound, very favorable to the veteran regardless of the date of the original claim....

#7 Pete53

 
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Posted 23 April 2012 - 02:16 PM

I was 100% effective Nov 1993 with agorophobia diagnosed by VA and outside medical Docs including SSD as of March 1991.

And yet they still say no.

#8 carlie

 
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Posted 23 April 2012 - 03:39 PM

Thanks, Carlie!!! I've read it once and am confused already.
Anytime they introduce all those dates, disabilities and percentages,
I feel like I just got off a merry-go-round and am confused. I'll keep trying.

pr



pr and others,

The relevance of this topic is in relation to prior topics,posts and questions about
SMC/S and how the regs are to be applied for additional SC'd disabilities at 60 percent
1) independently ratable
and housebound
2) inability to leave home to earn a living versus inability to leave the house at all.


http://www.va.gov/ve...es5/1147016.txt

SMC is also payable, under 38 U.S.C.A. 1114(s), where a veteran has a single service-connected disability rated as 100 percent and, (1) has additional 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. This requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 C.F.R.
§ 3.350(i)(2) (2011).

Housebound benefits granted on the basis of being substantially confined to the home, means inability to leave to earn a living. The law and regulation providing housebound benefits are intended to provide additional compensation for veterans who are unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all. Hartness v. Nicholson, 20 Vet. App. 216 (2006).

The relevant focus for adjudicating an increased rating claim, including SMC, is on the evidence concerning the state of the Veteran's disabilities from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990)."



*** Below is the most important information in this topic I started and the BVA decision I posted.
​I feel the importance in this is the showing of a more defined definition/VA's interpretation, of
WHAT and HOW the term, "independently ratable" is applicable.
It may turn out to NOT be helpful at all - but something contained in it keeps lighting a bulb in my brain, maybe I just have a short circuit going on : - )


http://www.va.gov/ve...es1/0008627.txt


INTRODUCTION

In an August 1997 rating decision the RO revised the
effective date for the increase in special monthly
compensation to October 27, 1995.

The veteran contends that he is entitled to an effective date in 1972 for the increase
in the special monthly compensation.

The Board finds, therefore, that the issue of the effective date for the
increase in the special monthly compensation remains in
contention. See Fenderson v. West, 12 Vet. App. 119 (1999)
(a claim remains in controversy if less than the maximum
benefit is awarded).


THE ISSUE

Entitlement to an effective date prior to October 27, 1995,
for an increase in special monthly compensation, including
the issue of whether a February 1973 rating decision was
clearly and unmistakably erroneous in denying entitlement to

special monthly compensation in excess of that specified in
38 U.S.C.A. § 1114(k) (West 1991) (formerly 38 U.S.C.
§ 314(k) (1970)).



FINDINGS OF FACT

3. In a February 1974 rating decision the RO denied
entitlement to special monthly compensation at the rate
payable pursuant to 38 U.S.C.A. § 1114(s) for having a single
disability rated at 100 percent and additional disabilities
independently ratable at 60 percent.



5. In accordance with the law in effect in February 1973,
the combined disability ratings for the right and left upper
extremities constitute a single service-connected disability
rated at 100 percent, and the additional disabilities of the
head and face, back and thorax, and left thigh are
independently ratable at 60 percent or more.

6. The February 1973 rating decision was clearly and
unmistakably erroneous in failing to grant entitlement to
special monthly compensation at the rate payable pursuant to
38 U.S.C.A. § 1114(s) for having a single service-connected
disability rated at 100 percent and additional service-
connected disabilities independently ratable at 60 percent.

CONCLUSION OF LAW

The veteran is entitled to an effective date of January 1,
1972, for the grant of special monthly compensation pursuant
to 38 U.S.C.A. § 1114(s) (formerly 38 U.S.C.A. § 314(s)) for
having a single service-connected disability rated at
100 percent and additional service-connected disabilities
independently ratable at 60 percent. 38 U.S.C. § 4005©
(1970), 38 U.S.C.A. §§ 5109A, 5110(a) and (b) (West 1991);
38 C.F.R. §§ 4.16, 19.153 (1972), 38 C.F.R. § 3.400(k)
(1999); Veterans' Benefit Administration Manual M21-1,
Paragraph 50.38 (June 25, 1965).



II. Laws and Regulations

According to the regulation in effect in February 1973,
special monthly compensation was payable at a specified rate
if the veteran had a single service-connected disability
rated at 100 percent under regular schedular criteria and he
had additional 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 functions.
38 U.S.C. § 314(s) (1970); 38 C.F.R. § 3.350(i) (1972).


The provisions of the Veterans Benefit Administration Manual
M21-1 (Manual M21-1) showed that in defining "single
disability," the provisions of Paragraph No. 16 of the rating
schedule applied.

The Manual M21-1 also showed that the
independent 60 percent or more disability was determined
based on a regular evaluation based on the rating schedule.

The disabilities of 60 percent or more had to be separate and
distinct from the single 100 percent disability and had to
involve separate anatomical segments or bodily systems.

Although the rating schedule provided that separate
evaluations be made for each diagnosis relating to a single
bodily system, when such diagnoses covered a single
functional entity and were all parts of a common disability,
they could not be considered as being independently ratable.

Within these limitations,

however, the fact that a
100 percent disability and an independent 60 percent
disability resulted from a common etiological agent, such as
single injury, did not preclude entitlement. Manual M21-1,
Paragraph 50.38 (June 25, 1965). The Court has held that
substantive rules contained in Manual 21-1 are binding on VA.

See Montalvo v. Brown, 7 Vet. App.
312 (1995).


Paragraph 16 of the rating schedule indicated that
disabilities of one or both upper extremities, one or both
lower extremities, disabilities resulting from common
etiology or a single accident, disabilities affecting a
single body system, or multiple injuries incurred in action
were considered to be a single disability. 38 C.F.R. § 4.16
(1972).


III. Analysis

As the result of the September 1998 rating decision, the
combined rating for the disabilities that were documented in
February 1974 exceeds 60 percent.

The disabilities are independently ratable because they pertain to different
functional entities.

Although they arose from a common etiology,
that restriction does not apply in determining whether the disabilities are independently ratable for the
purpose of determining whether the veteran has additional disabilities rated at 60 percent or more.

Manual M21-1, Paragraph 50.38.

The Board finds, therefore, that the evidence clearly shows
that effective January 1, 1972, the veteran had a "single"
service-connected disability rated at 100 percent, and
additional disabilities rated at 60 percent or higher.
Because there was compelling evidence of record establishing
that the veteran was entitled to the assigned ratings, the RO
committed clear and unmistakable error in failing to grant
service connection and assign the proper ratings. Crippen,
9 Vet. App. at 421. The RO also erred in failing to grant
special monthly compensation for having a single disability
rated at 100 percent and additional disabilities
independently rated at 60 percent. The Board has determined,
therefore, that the veteran is entitled to an effective date
of January 1, 1972, for the grant of special monthly
compensation at the rate payable pursuant to 38 U.S.C.A.
§ 1114(s) (formerly 38 U.S.C. § 314(s)).


ORDER
An effective date of January 1, 1972, is awarded for the
grant of special monthly compensation at the rate payable

pursuant to 38 U.S.C.A. § 1114(s), subject to the laws and
regulations pertaining to the payment of monetary benefits.


#9 broncovet

 
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Posted 23 April 2012 - 06:12 PM

Great post, Carlie. I think this case answers a lot of unanswered questions.

#10 Philip Rogers

 
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Posted 24 April 2012 - 07:42 AM

Pete - I hope your claim is under appeal. If not, I'd file a CUE claim. jmo

pr



I was 100% effective Nov 1993 with agorophobia diagnosed by VA and outside medical Docs including SSD as of March 1991.

And yet they still say no.



#11 Philip Rogers

 
Philip Rogers

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Posted 24 April 2012 - 07:51 AM

Carla - I understand what you and the Court are saying. This claimant certainly had additional disabilities ratable at 60% or more. My problem still remains the CRT vs common addition. I can't find any cases where the claimant had 60% using common addition but 50% using the CRT and won an "s" award. Bergmann & Moore now have the case and if I'm lucky I'll live long enough to see the results of the Court's decision. ;-)

pr



pr and others,

The relevance of this topic is in relation to prior topics,posts and questions about
SMC/S and how the regs are to be applied for additional SC'd disabilities at 60 percent
1) independently ratable
and housebound
2) inability to leave home to earn a living versus inability to leave the house at all.


http://www.va.gov/ve...es5/1147016.txt

SMC is also payable, under 38 U.S.C.A. 1114(s), where a veteran has a single service-connected disability rated as 100 percent and, (1) has additional 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. This requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 C.F.R.
§ 3.350(i)(2) (2011).

Housebound benefits granted on the basis of being substantially confined to the home, means inability to leave to earn a living. The law and regulation providing housebound benefits are intended to provide additional compensation for veterans who are unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all. Hartness v. Nicholson, 20 Vet. App. 216 (2006).

The relevant focus for adjudicating an increased rating claim, including SMC, is on the evidence concerning the state of the Veteran's disabilities from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990)."



*** Below is the most important information in this topic I started and the BVA decision I posted.
​I feel the importance in this is the showing of a more defined definition/VA's interpretation, of
WHAT and HOW the term, "independently ratable" is applicable.
It may turn out to NOT be helpful at all - but something contained in it keeps lighting a bulb in my brain, maybe I just have a short circuit going on : - )


http://www.va.gov/ve...es1/0008627.txt


INTRODUCTION

In an August 1997 rating decision the RO revised the
effective date for the increase in special monthly
compensation to October 27, 1995.

The veteran contends that he is entitled to an effective date in 1972 for the increase
in the special monthly compensation.

The Board finds, therefore, that the issue of the effective date for the
increase in the special monthly compensation remains in
contention. See Fenderson v. West, 12 Vet. App. 119 (1999)
(a claim remains in controversy if less than the maximum
benefit is awarded).


THE ISSUE

Entitlement to an effective date prior to October 27, 1995,
for an increase in special monthly compensation, including
the issue of whether a February 1973 rating decision was
clearly and unmistakably erroneous in denying entitlement to

special monthly compensation in excess of that specified in
38 U.S.C.A. § 1114(k) (West 1991) (formerly 38 U.S.C.
§ 314(k) (1970)).



FINDINGS OF FACT

3. In a February 1974 rating decision the RO denied
entitlement to special monthly compensation at the rate
payable pursuant to 38 U.S.C.A. § 1114(s) for having a single
disability rated at 100 percent and additional disabilities
independently ratable at 60 percent.



5. In accordance with the law in effect in February 1973,
the combined disability ratings for the right and left upper
extremities constitute a single service-connected disability
rated at 100 percent, and the additional disabilities of the
head and face, back and thorax, and left thigh are
independently ratable at 60 percent or more.

6. The February 1973 rating decision was clearly and
unmistakably erroneous in failing to grant entitlement to
special monthly compensation at the rate payable pursuant to
38 U.S.C.A. § 1114(s) for having a single service-connected
disability rated at 100 percent and additional service-
connected disabilities independently ratable at 60 percent.

CONCLUSION OF LAW

The veteran is entitled to an effective date of January 1,
1972, for the grant of special monthly compensation pursuant
to 38 U.S.C.A. § 1114(s) (formerly 38 U.S.C.A. § 314(s)) for
having a single service-connected disability rated at
100 percent and additional service-connected disabilities
independently ratable at 60 percent. 38 U.S.C. § 4005©
(1970), 38 U.S.C.A. §§ 5109A, 5110(a) and (b) (West 1991);
38 C.F.R. §§ 4.16, 19.153 (1972), 38 C.F.R. § 3.400(k)
(1999); Veterans' Benefit Administration Manual M21-1,
Paragraph 50.38 (June 25, 1965).



II. Laws and Regulations

According to the regulation in effect in February 1973,
special monthly compensation was payable at a specified rate
if the veteran had a single service-connected disability
rated at 100 percent under regular schedular criteria and he
had additional 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 functions.
38 U.S.C. § 314(s) (1970); 38 C.F.R. § 3.350(i) (1972).


The provisions of the Veterans Benefit Administration Manual
M21-1 (Manual M21-1) showed that in defining "single
disability," the provisions of Paragraph No. 16 of the rating
schedule applied.

The Manual M21-1 also showed that the
independent 60 percent or more disability was determined
based on a regular evaluation based on the rating schedule.

The disabilities of 60 percent or more had to be separate and
distinct from the single 100 percent disability and had to
involve separate anatomical segments or bodily systems.

Although the rating schedule provided that separate
evaluations be made for each diagnosis relating to a single
bodily system, when such diagnoses covered a single
functional entity and were all parts of a common disability,
they could not be considered as being independently ratable.

Within these limitations,

however, the fact that a
100 percent disability and an independent 60 percent
disability resulted from a common etiological agent, such as
single injury, did not preclude entitlement. Manual M21-1,
Paragraph 50.38 (June 25, 1965). The Court has held that
substantive rules contained in Manual 21-1 are binding on VA.

See Montalvo v. Brown, 7 Vet. App.
312 (1995).


Paragraph 16 of the rating schedule indicated that
disabilities of one or both upper extremities, one or both
lower extremities, disabilities resulting from common
etiology or a single accident, disabilities affecting a
single body system, or multiple injuries incurred in action
were considered to be a single disability. 38 C.F.R. § 4.16
(1972).


III. Analysis

As the result of the September 1998 rating decision, the
combined rating for the disabilities that were documented in
February 1974 exceeds 60 percent.

The disabilities are independently ratable because they pertain to different
functional entities.

Although they arose from a common etiology,
that restriction does not apply in determining whether the disabilities are independently ratable for the
purpose of determining whether the veteran has additional disabilities rated at 60 percent or more.

Manual M21-1, Paragraph 50.38.

The Board finds, therefore, that the evidence clearly shows
that effective January 1, 1972, the veteran had a "single"
service-connected disability rated at 100 percent, and
additional disabilities rated at 60 percent or higher.
Because there was compelling evidence of record establishing
that the veteran was entitled to the assigned ratings, the RO
committed clear and unmistakable error in failing to grant
service connection and assign the proper ratings. Crippen,
9 Vet. App. at 421. The RO also erred in failing to grant
special monthly compensation for having a single disability
rated at 100 percent and additional disabilities
independently rated at 60 percent. The Board has determined,
therefore, that the veteran is entitled to an effective date
of January 1, 1972, for the grant of special monthly
compensation at the rate payable pursuant to 38 U.S.C.A.
§ 1114(s) (formerly 38 U.S.C. § 314(s)).


ORDER
An effective date of January 1, 1972, is awarded for the
grant of special monthly compensation at the rate payable

pursuant to 38 U.S.C.A. § 1114(s), subject to the laws and
regulations pertaining to the payment of monetary benefits.