Richard A. Stewart v. Douglas A. Collins

Case: 24-270 Page: 1 of 19 Filed: 09/08/2025

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 24-0270

RICHARD A. STEWART, APPELLANT,

V.

DOUGLAS A. COLLINS,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued July 17, 2025 Decided September 8, 2025)

Amy F. Odom, with whom David J. Giza was on the brief, both of Providence, Rhode

Island, for the appellant.

Brian S. Carey, with whom Richard J. Hipolit, Principal Deputy General Counsel; Mary

Ann Flynn, Chief Counsel; and Edward V. Cassidy, Jr., Deputy Chief Counsel, were on the brief,

all of Washington, D.C., for the appellee.

Before GREENBERG, MEREDITH, and JAQUITH, Judges.

MEREDITH, Judge: The appellant, Richard A. Stewart, through counsel appeals a

November 1, 2023, Board of Veterans' Appeals (Board) decision that (1) determined that

severance of special monthly compensation (SMC) based on housebound status was proper,

(2) found that a later effective date, August 1, 2023, rather than February 28, 2018, was warranted

for that severance, and (3) dismissed as moot the matter of entitlement to an effective date earlier

than February 28, 2018, for the initial award of SMC based on housebound status. Record (R.) at

4-31.1 This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant

to 38 U.S.C. §§ 7252(a) and 7266(a).

1

The Board also granted entitlement to an October 2, 2012, effective date for the award of a total disability

rating based on individual unemployability (TDIU) and for eligibility for dependents' educational assistance; disability

ratings of 20% each from October 2, 2012, for right and left lower extremity sciatic nerve radiculopathy; and a

disability rating of 20% for left lower extremity femoral nerve radiculopathy, from February 28, 2018. The Board's

awards are favorable findings that the Court may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007),

aff'd in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App'x 625 (Fed. Cir. 2009); see also Bond v.

Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) ("This Court's jurisdiction is confined to the review of final

Board . . . decisions which are adverse to a claimant."). The Board denied entitlement to (1) an effective date prior to

October 2, 2012, for the award of benefits for an acquired psychiatric disorder, including post-traumatic stress disorder

(PTSD); (2) a compensable rating for a posterior trunk scar; (3) a rating in excess of 30% prior to November 1, 2016,

and in excess of 50% thereafter for an acquired psychiatric disorder, to include PTSD; (4) a rating in excess of 40%

for a back disability; (5) a rating in excess of 20% for left lower extremity sciatic nerve radiculopathy; (6) a rating in

Case: 24-270 Page: 2 of 19 Filed: 09/08/2025

After the Court obtained supplemental briefing, this matter was referred to a panel in May

2025 to determine whether, when VA discontinues SMC based on clear and unmistakable error

(CUE) in a prior favorable finding, the Board may uphold the discontinuance based on a different

theory of CUE than that identified by the agency of original jurisdiction (AOJ),2 and whether

discontinuance of SMC is more akin to a rating reduction or to a severance of service connection.

The Court heard oral argument on July 17, 2025.

For the following reasons, the Court holds that the procedures for severing service

connection do not apply to discontinuing SMC. In light of the Board's error in relying on the

severance standard, along with other errors conceded by the Secretary, the Court concludes that

VA did not carry its burden of showing that discontinuance of SMC was proper. Accordingly, the

Court will reverse that part of the Board's decision that discontinued SMC based on housebound

status, effective August 1, 2023,3 and remand this matter with instructions to reinstate that benefit

as of that date. In addition, the Court will vacate that part of the Board's decision that dismissed as

moot the inextricably intertwined matter of entitlement to an effective date earlier than

February 28, 2018, for the award of SMC, and the Court will remand that matter for further

proceedings consistent with this decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Marine Corps from July 1963 to July 1967.

R. at 3211. In June 2022, a VA regional office (RO) awarded a TDIU rating "on account of

[the appellant's] service[-]connected [PTSD], alcohol use disorder," effective November 3, 2021.

R. at 1166; see R. at 1164-70, 1192-96. The RO also continued the assigned 50% rating for PTSD.

R. at 1166-67. The appellant sought higher-level review (HLR) of that decision. R. at 1149-51.

excess of 20% for right lower extremity sciatic nerve radiculopathy; (7) an effective date prior to February 28, 2018,

for the 20% rating for left lower extremity femoral nerve radiculopathy; and (8) a rating in excess of 20% for right

lower extremity femoral nerve radiculopathy. The appellant challenges only those parts of the Board's decision that

relate to SMC; accordingly, he has abandoned his appeal as to these eight denied matters, and the Court will dismiss

the appeal as to those matters. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).

2

As explained below, because the Board here applied an incorrect standard in assessing whether to

discontinue the appellant's SMC and because the Court concludes that reversal is warranted, the Court does not reach

the question of what would be within the scope of a VA-initiated CUE attack under a different standard.

3

The Board, in the decision on appeal, reinstated SMC from February 28, 2018, to August 1, 2023. R. at 20.

The Court will not disturb that favorable finding. See Medrano, 21 Vet.App. at 170.

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In a September 2022 HLR decision, the RO granted an earlier effective date of February 28,

2018, for the award of TDIU and found that the appellant met the criteria for SMC under 38 U.S.C.

§ 1114(s) (SMC(s))4 based on housebound status as of that date. R. at 1103-14, 1141-45. The RO

explained that SMC(s) was warranted because TDIU was granted based on a single condition—

PTSD—and "[the appellant's] other service[-]connected conditions are ratable at 60[%] or more."

R. at 1106. Of note, in granting an earlier effective date for TDIU, the RO stated: "[Y]ou are unable

to work due to your [PTSD]. Your back condition and radiculopathy conditions are service

connected[,] and their evaluations assist in your overall combined percentage and . . . help you

meet the overall schedular requirements for this benefit." R. at 1105.

Several months later, in February 2023, the RO found that the award of SMC(s) was CUE,

and therefore the RO proposed to discontinue that benefit from February 28, 2018. R. at 750-54.

The RO reasoned as follows:

[TDIU] may be assigned where the schedular rating is less than total if it is found

that the disabled person is unable to secure or follow a substantially gainful

occupation [either 1)] as a result of . . . a single service-connected disability ratable

at 60[%] or more, or 2) as a result of two or more disabilities, provided at least one

disability is ratable at 40[%] or more, and there is sufficient additional service-

connected disability to bring the combined rating to 70[%] or more. . . .

The rating decision dated [June 22], 2022, granted [TDIU] based on the single

condition of [PTSD], which was rated at 50%, so the requirements [of 38 C.F.R.

§ 4.16(a)] for a single disability rated at 60[%] or more were not met. [TDIU] was

therefore granted as a result of two or more disabilities, where at least one disability

is ratable at 40[%] or more, and there is sufficient additional service-connected

disability to bring the combined rating to 70[%] or more.

The rating decision dated September 5, 2022, incorrectly established [entitlement

to] [SMC(s)] based on housebound criteria. We have denied entitlement to

[SMC(s)] because the evidence shows [that] you [do] not . . . have a single

service[-]connected disability rated 100[%] and a separate service-connected

disability or disabilities independently rated 60[%] or more.

R. at 751-52 (citations omitted). The RO effectuated the discontinuance in a May 2023 decision,

effective February 28, 2018. R. at 308-10.

4

As pertinent here, entitlement to SMC under 38 U.S.C. § 1114(s) is warranted if the veteran "has a service-

connected disability rated as total, and . . . has additional service-connected disability or disabilities independently

ratable at 60% or more." 38 U.S.C. § 1114(s)(1). The Court will generally refer to these two components of SMC(s)

as "the 100% requirement" and "the 60% requirement."

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Through current counsel, the appellant appealed the May 2023 decision, R. at 244-45,

arguing that "there is no requirement that [his] PTSD be rated more than 50[%] for him to qualify

for SMC(s)" and noting that "[t]he requirements are (1) for one single disability to qualify as totally

disabling, and (2) for the other disabilities to combine to 60[%] or more," R. at 242 (citing Bradley

v. Peake, 22 Vet.App. 280, 289-90 (2008); 38 C.F.R. § 3.350(i) (2023)). He further asserted that

"[i]t appears [that] VA has [discontinued] SMC(s) for no reason besides the fact that it granted

[him] TDIU based on his PTSD alone, which was only rated 50[%]," but he maintained that

"[g]ranting TDIU under the provisions of 38 C.F.R. § 4.16(b) is not [CUE]," given that "[t]he law

expressly instructs VA to do so." Id. He asked VA to restore entitlement to SMC(s) from February

2018. R. at 243.

In the November 2023 decision on appeal, the Board first outlined the two requirements

for SMC(s) relevant to this matter—that, "in addition to a single, permanent service-connected

disability rated 100[%] disabling, [a veteran have] additional service-connected disability or

disabilities independently ratable at 60[%]," R. at 17—and the Board noted that the RO had

proposed to "sever service connection" because the initial award of SMC(s) had been made "in

error," R. at 18. The Board then cited the relevant law as 38 C.F.R. § 3.105(d), stating that

"[p]reviously granted benefits will be severed only where evidence establishes that the award of

service connection was [CUE]." Id. The Board also summarized the requirements for establishing

CUE and noted that, "[i]n most respects, the CUE standard under § 3.105(d) is equivalent to the

CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a)." R. at 19.

After finding that VA complied with the due process requirements of § 3.105(d), the Board noted

that the RO incorrectly severed SMC(s) as of February 28, 2018, and the Board therefore amended

the effective date of severance to August 1, 2023. R. at 20.

Turning to the question of "whether the grant of SMC benefits was CUE," the Board found

that it was. Id. The Board provided the following discussion:

While the [appellant] has been granted a TDIU [rating], which can constitute a

single service[-]connected disability, none of his other disabilities are rated as

60[%] or greater, even when considering the combined effect of his bilateral lower

extremity radiculopathy. Contrary to what the [appellant] argues, the standard is

not that his other separate service[-]connected disabilities combine to equal greater

than 60[%]. Rather, one other single disability must be rated as 60[%] or greater.

....

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At the time the [appellant] was granted SMC benefits, the RO improperly applied

the statutory and regulatory provisions, combining [his] remaining disabilities to

qualify as a separate, service[-]connected disability rated as greater than 60[%].

R. at 21 (citation omitted). The Board explained that the RO's error "manifestly changed the

outcome of the decision[ because,] had the RO not erroneously combined disabilities, the

[appellant] would not have been granted SMC[(s)] as meeting the statutory requirements." Id. The

Board then found that, because the appellant had not been entitled to SMC(s) in the first place and

the RO correctly severed the benefit, the issue of the proper effective date for the award of that

benefit was moot, and the Board therefore dismissed the appeal as to that matter. R. at 5, 22. This

appeal followed.

II. ANALYSIS

As explained below, the parties agree that the Board committed a number of errors in the

decision on appeal, but they disagree on the appropriate remedy. Resolving this dispute requires

the panel to consider (1) whether SMC constitutes service connection, which in turn controls the

provision of law under which VA may seek to discontinue it, and (2) under what circumstances, if

any, VA should be afforded an additional opportunity to seek to discontinue those benefits.

A. Legal Landscape

1. TDIU

TDIU may be assigned to a veteran who meets certain disability percentage thresholds and

is "unable to secure or follow a substantially gainful occupation as a result of service-connected

disabilities." 38 C.F.R. § 4.16(a) (2025). More specifically, "if there is only one such disability,

this disability shall be ratable at 60[%] or more, and . . . if there are two or more disabilities, there

shall be at least one disability ratable at 40[%] or more, and sufficient additional disability to bring

the combined rating to 70[%] or more." Id. If a veteran fails to meet the percentage standards set

forth in § 4.16(a) but there is "sufficient evidence to substantiate a reasonable possibility that a

veteran is unemployable by reason of his or her service-connected disabilities," Ray v. Wilkie,

31 Vet.App. 58, 66 (2019), the matter should be submitted to the Director of the Compensation

Service for extraschedular consideration. 38 C.F.R. § 4.16(b).

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2. SMC

SMC is available when a veteran's service-connected disability or disabilities cause

"additional hardships above and beyond those contemplated by VA's schedule for rating

disabilities." Breniser v. Shinseki, 25 Vet.App. 64, 68 (2011); see 38 U.S.C. § 1114(k)-(s). As

noted briefly above, entitlement to SMC under section 1114(s) is warranted if a veteran "has a

service-connected disability rated as total, and . . . has additional service-connected disability or

disabilities independently ratable at 60% or more." 38 U.S.C. § 1114(s)(1); accord 38 C.F.R.

§ 3.350(i)(1) (2025).5 A TDIU rating may satisfy the first statutory requirement that the veteran

have a total rating only if the veteran's unemployability is based on a single disability. Bradley,

22 Vet.App. at 293. As a corollary, a TDIU rating "that is based on multiple underlying disabilities

cannot satisfy the section 1114(s) requirement of 'a service-connected disability' because that

requirement must be met by a single disability." Buie v. Shinseki, 24 Vet.App. 242, 250 (2010)

(quoting 38 U.S.C. § 1114(s)(1)). Notably, the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit) has determined that the 60% requirement of section 1114(s) "unambiguously

requires the veteran's additional disabilities be rated at least [60%] based upon the combined

ratings table." Gazelle v. Shulkin, 868 F.3d 1006, 1012 (Fed. Cir. 2017).

3. Favorable Findings Under § 3.104(c)

"Any finding favorable to the claimant made by either a VA adjudicator . . . or by the Board

. . . is binding on all subsequent [AOJ] and Board . . . adjudicators, unless rebutted by evidence

that identifies a [CUE]." 38 C.F.R. § 3.104(c) (2025). VA is required to notify a claimant of its

decisions, including "[a] listing of any findings made by the adjudicator that are favorable to the

claimant." 38 C.F.R. § 3.103(f)(4) (2025); see 38 U.S.C. § 5104(b)(4); Cowan v. McDonough,

35 Vet.App. 232, 242-43 (2022). Relatedly, "[a]ny findings favorable to the claimant as identified

by the [AOJ] in notification of a decision or in a prior Board decision on an issue on appeal are

binding on all [AOJ] and Board . . . adjudicators, unless rebutted by evidence that identifies a

[CUE] in the favorable finding." 38 C.F.R. § 20.801(a) (2025).

In proposing § 20.801, VA noted that, prior to the enactment of the Veterans Appeals

Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105, "[i]n practice,

5

SMC(s) may also be awarded where a veteran "has a service-connected disability rated as total, and . . . by

reason of such . . . service-connected disability or disabilities, [the veteran] is permanently housebound." 38 U.S.C.

§ 1114(s)(2). That provision, however, is not implicated in this appeal.

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the Board would rarely disturb such [favorable] findings," and VA explained that § 20.801 was

"largely serving to codify a longstanding practice of the Board not to disturb favorable findings or

elements of the claim made by the [AOJ]," VA Claims and Appeals Modernization, 83 Fed. Reg.

39,818, 39,836 (Aug. 10, 2018) (proposed rule).

4. Revision of Decisions Generally

In addition to the regulatory limitations on disturbing individual favorable findings, there

are a number of provisions explaining when and how VA may seek to reduce or discontinue a prior

award of benefits. To begin, 38 C.F.R. § 3.105(a)(1) provides that "[a]t any time after a decision

is final . . . VA may initiate[] review of the decision to determine if there was a [CUE] in the

decision," and "[w]here evidence establishes such error, the prior decision will be reversed or

amended." On the other hand, § 3.105(a)(2) pertains to errors "in binding decisions prior to final

adjudication" and requires that "previous decisions which are binding will be accepted as correct

by the [AOJ], with respect to the evidentiary record and law existing at the time of the decision,

unless the decision is clearly erroneous, after considering whether any favorable findings may be

reversed as provided in § 3.104(c)." Further, as relevant to the arguments on appeal, § 3.105(e)

governs a "[r]eduction in evaluation—compensation" and § 3.105(h) applies to "[o]ther

reductions/discontinuances." 38 C.F.R. § 3.105(e), (h) (2025).

5. Severance of Service Connection

"[T]o sever service connection is to conclude that a particular disability previously

determined to have been incurred in the line of duty was incurred otherwise." Read v. Shinseki,

651 F.3d 1296, 1300 (Fed. Cir. 2011). "[S]ervice connection will be severed only where evidence

establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the

Government)" and only after certain procedural safeguards have been met. 38 C.F.R. § 3.105(d).

To demonstrate that severance is proper, "the Secretary is not limited to the law and the record that

existed at the time of the original decision" that awarded service connection. Stallworth v.

Nicholson, 20 Vet.App. 482, 488 (2006). "Consequently, the severance decision focuses—not on

whether the original decision was clearly erroneous—but on whether the current 'evidence

establishes that [service connection] is clearly [and unmistakably] erroneous.'" Id. (emphasis

added) (quoting 38 C.F.R. § 3.105(d)). Severance of service connection based on any standard less

than that established by § 3.105(d) is erroneous as a matter of law. Id.

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6. Jurisdiction for Purposes of CUE

It is well settled that "each 'specific' assertion of CUE constitutes a [matter] that must be

the subject of a decision by the [Board] before [this] Court can exercise jurisdiction over it." Andre

v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); see Russell v. Principi, 3 Vet.App. 310, 315

(1992) (en banc) (holding that, when the Court reviews a Board decision regarding CUE, "[t]he

necessary jurisdictional 'hook' for this Court to act is a decision of the [Board] on the specific issue

of '[CUE]'"). If the "appellant raises a new theory of CUE for the first time before the Court, the

Court must dismiss for lack of jurisdiction." Acciola v. Peake, 22 Vet.App. 320, 325 (2008) (citing

Sondel v. Brown, 6 Vet.App. 218, 219-20 (1994)); cf. Jarrell v. Nicholson, 20 Vet.App. 326, 333

(2006) (en banc) ("[E]ach wholly distinct and different CUE theory underlying a request for

revision is a separate matter and, when attacking a prior RO decision, each must be presented to

and adjudicated by the RO in the first instance and, if not, the Board lacks jurisdiction over the

merits of the matter.").

7. Remedy

When VA seeks to reduce or discontinue benefits, the burden of proof is on the

Government. See Hedgepeth v. Wilkie, 30 Vet.App. 318, 327 (2018); Kitchens v. Brown,

7 Vet.App. 320, 324-35 (1995); Dofflemyer v. Derwinski, 2 Vet.App. 277, 279-82 (1992). Our

caselaw has addressed the appropriate remedy in various situations when VA fails to satisfy that

burden. Generally, "when VA attempts to stop or reduce payment to a veteran" but "fail[s] to

comply" with applicable law, the decision "is void ab initio." King v. Shinseki, 26 Vet.App. 484,

493 (2014). For example, the Court has held that reversal of the Agency's reduction decision and

reinstatement of the original disability rating is the appropriate remedy where the Agency did not

afford the claimant the special regulatory protections for rating reductions, imposed an

inappropriate standard of proof, or failed entirely to address whether there was an improvement in

the ability to function under the ordinary conditions of life and work. See Stern v. McDonough,

34 Vet.App. 51, 57-59 (2021) (discussing cases).

Similarly, the Court has determined that reversal of severance of service connection and

reinstatement was warranted where "the appellants were never afforded the opportunity to rebut

[the factual finding that led to severance], under the appropriate standard, before their benefits

were terminated." Wilson v. West, 11 Vet.App. 383, 386 (1998). Moreover, in Horn v. Shinseki, in

which the Court concluded that the evidence of record was "plainly insufficient to rebut the

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presumption of soundness" and that it was "unclear how a remand would be anything other than

yet another opportunity [for VA] to generate more evidence to make up the shortfall" in the current

record, the Court held that, because "[t]he Court would not remand a case when a veteran fails to

carry a point on which he or she has the burden of proof[, i]t would be unseemly to so accommodate

VA and the Board as to matters on which the Government has the burden of proof." 25 Vet.App.

231, 243-44 (2012). Nevertheless, our caselaw leaves open the possibility that remedies other than

reversal may be warranted if, for example, informed judicial review is not possible or VA's errors

are not prejudicial. See Stern, 34 Vet.App. at 57-58.

B. Parties' Arguments

1. Initial Briefing

a. Appellant

The appellant first argues that the Board improperly affirmed the severance of SMC based

on a different theory of CUE than the one on which the RO relied to sever SMC. Appellant's Brief

(Br.) at 7-10. More particularly, he notes that, although the RO in May 2023 found CUE because

his TDIU rating was purportedly based on more than one disability—leaving him without the

necessary hook for SMC(s) of one disability rated totally disabling, see 38 U.S.C. § 1114(s);

Bradley, 22 Vet.App. at 293—the Board in the decision on appeal found that the award of SMC

was CUE because no single one of the appellant's other disabilities is independently ratable 60%

or more, Appellant's Br. at 8; see 38 U.S.C. § 1114(s). He contends that "the Board did not have

jurisdiction over this distinct CUE theory," asserting that, "[j]ust like the Board cannot entertain a

veteran's theory of CUE presented for the first time on appeal, it cannot sua sponte raise its own

new theory of CUE on appeal." Appellant's Br. at 8 (citing Jarrell, 20 Vet.App. at 332-33). Doing

so, he explains, would also deprive a veteran of notice of the Agency's reason for finding CUE and

of an opportunity to respond. Id. at 9.

In the alternative, the appellant maintains that, even if the Board were permitted to address

a different theory of CUE, the Board "did not find CUE in the [RO's] favorable findings." Id. at

10. In this regard, he avers that the RO in September 2022 granted SMC(s) because it found that

he had been awarded TDIU based on a single disability—PTSD—and that "his other conditions

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had a combined rating of at least 60[%]."6 Id. (citing R. at 1106). He contends that "[t]he Board

could only rebut these findings with 'evidence that identifies a [CUE] in the favorable finding,'"

id. (quoting 38 C.F.R. § 3.104(c) (2024)), and he argues that "[t]he Board did not even

acknowledge the procedure for reversing the [RO's] favorable findings, let alone address whether

the [RO's] favorable findings were the result of [CUE]," id. at 11.

Relatedly, the appellant asserts that the Board incorrectly interpreted section 1114(s) and

§ 3.350 as requiring—in addition to a single condition rated totally disabling—another single

service-connected disability rated at least 60%. Id. He notes that the Federal Circuit has expressly

determined that "'[section] 1114(s)(1) unambiguously requires the veteran's additional disabilities

be rated at least [60%] based upon the combined ratings table' when assessing entitlement to SMC

at the housebound rate." Id. (emphasis omitted) (quoting Gazelle, 868 F.3d at 1012).

Finally, the appellant urges the Court not to address in the first instance the RO's May 2023

CUE finding—that his TDIU was not granted on the basis of a single disability—because the

Board has not addressed that theory of CUE, thus depriving the Court of jurisdiction over it. Id. at

12-13 (citing Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000)). If, however, the Court

does address that theory of CUE, the appellant asserts that the RO misunderstood the law because

the "premise that [the RO] could not grant TDIU based on one disability rated less than 60[%]

disabling erroneously imposes more than [38 C.F.R. §] 4.16 requires." Id. at 14.

The appellant asks the Court to "set aside and reverse the Board's decision upholding the

severance of SMC and order the Board to reinstate SMC" because the severance was not in

accordance with the law. Id. at 15. As support, he maintains that "the [RO] did not misunderstand

or misapply section[] 1114(s)(1)[ or §§] 3.350(i)(1)[] or 4.16(a) when it [found that TDIU was

based on PTSD alone] and granted SMC," and so "any finding of CUE would have been arbitrary

and capricious." Id. at 15-16 (citing 38 C.F.R. § 3.104(c)). Because, he argues, "VA could only

sever [his] SMC if it carried its burden of showing that the underlying favorable findings were

CUE," and the Board did not make that finding, the Board failed to follow the proper procedures,

warranting reversal of severance and reinstatement of SMC. Id. at 17 (citing Andino v. Nicholson,

498 F.3d 1370, 1373 (Fed. Cir. 2007)).

6

The RO stated that the appellant's "other service[-]connected conditions [we]re ratable at 60[%] or more,"

and that his other service-connected conditions were "independently ratable at 60[%] or more from February 28,

2018." R. at 1106.

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b. Secretary

For his part, "the Secretary agrees with [the a]ppellant that the Board did not . . . identify

CUE warranting severance [of] SMC(s), and that the Court should not review the RO's

adjudication of CUE on the merits." Secretary's Br. at 9. However, the Secretary maintains that

vacatur and remand, rather than reversal, are warranted. Id.

Regarding the Board's errors, the Secretary notes that the Board misstated the requirements

of section 1114(s), and he acknowledges that "the 60% requirement can be met by combined

disabilities." Id. at 10 (citing Buie, 24 Vet.App. at 249). In addition, the Secretary highlights that,

because the Board's decision rests only on its determination that no one of the appellant's other

disabilities was rated at least 60%, "the Board did not address the grant of entitlement to TDIU

based on PTSD as the single disability rated at 100%, and hence whether the dependent grant of

entitlement to SMC(s) was based on CUE." Id. He therefore concedes that the Board incorrectly

applied the law and failed to address material facts, but he maintains that the Court cannot address

those facts in the first instance. Id.

Turning to the issue of remedy, the Secretary argues that the "fundamental flaw" in the

appellant's argument for reversal is that, "if the Board lacked jurisdiction over an issue, then the

Court [also] lacks jurisdiction over that issue." Id. at 11 (citing Andre, 301 F.3d at 1361). The

Secretary contends that it is therefore "unclear on what basis the Court would reverse a Board

finding over which it has no jurisdiction." Id. Even if the Board did not have jurisdiction over a

CUE theory based on the 60% requirement, the Secretary argues, "that does not change the fact

that the Board incorrectly applied the law and did not address the material facts regarding the CUE

theory related to the single 100% disability requirement, and thus . . . remand, and not reversal, is

required." Id.

The Secretary also disputes the appellant's assertion that the Board erroneously applied

§ 3.105(d) (severance of service connection) where it should have applied § 3.105(a)(2) (error in

binding decisions prior to final adjudication),7 and he notes that the standard for finding CUE in a

severance decision focuses on whether the current "'evidence establishes that [service connection]

is clearly erroneous,'" while in motions for revision of final decisions based on CUE, the focus is

on the record and law that existed at the time of the decision. Id. at 14 (quoting Stallworth,

7

As outlined below, the Secretary subsequently conceded that § 3.105(d) is not applicable here.

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20 Vet.App. at 488). The Secretary reiterates, however, that the Board's incorrect application of

the law and failure to address material facts warrant vacatur and remand. Id. at 15.

c. Reply

In reply, the appellant posits that the Secretary's concessions that the Board did not address

the RO's grant of entitlement to TDIU based on PTSD alone and did not otherwise identify CUE

warranting severance of SMC(s) warrant reversal, "regardless of whether subsection (a)(2) or (d)

of 38 C.F.R. § 3.105 governs the severance proceedings here." Reply Br. at 1. This is so, he says,

because "under either subsection (a)(2) or (d), 'the Secretary needs to show that [benefits] cannot

be granted or maintained under any theory,'" and if he fails to do so, he "'shirk[s] his burden,'"

which, in a severance case, requires the Court "'to find severance void ab initio and have VA

reinstate' benefits." Id. at 2 (quoting McCauley v. McDonough, 37 Vet.App. 188, 194 (2024)).

2. Supplemental Briefing

The Court sought additional information from the parties on a number of issues. Stewart v.

Collins, U.S. Vet. App. No. 24-0270 (Mar. 4, 2025) (unpublished order). Here, we summarize only

those arguments from the supplemental briefs that provide context for or are necessary to the

resolution of this matter.

The appellant reiterates that, even with VA-initiated CUE, "the Board's jurisdiction is

limited to the CUE theory that the [RO] adjudicated," Appellant's Supplemental (Supp.) Br. at 1,

and that here the RO adjudicated only one CUE theory—that he did not have "a single disability

rated totally disabling as required for SMC," id. at 3. The appellant further explains that SMC "is

a rate of compensation," id., and he argues that § 3.105(a)(2) was the appropriate legal authority

under which VA could attempt to terminate that award, id. at 7. In taking action under that

standard, he contends, VA must also comply with the requirement in § 3.104(c) that favorable

findings may be rebutted only based on CUE. Id. at 9.

Regarding the appropriate remedy, the appellant maintains that, because the parties agree

that the Board "did not identify CUE warranting severance of SMC," the Board failed to carry its

burden and reversal is appropriate. Id. at 6; see id. at 11. He stresses that "the Board failed entirely

to address the theory of CUE underlying the [RO's] termination of SMC." Id. at 13.

The Secretary acknowledges that, for purposes of VA-initiated CUE, "[t]he Board only has

jurisdiction to adjudicate whether to revise a final rating decision . . . if the . . . theory of CUE was

first adjudicated in a rating decision by the RO." Secretary's Supp. Br. at 2. He avers, however,

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that both the 100% requirement and the 60% requirement were "within the scope of the CUE

theory" addressed by the RO because the RO "made determinations on both requirements." Id.

at 8.8 Additionally, the Secretary clarifies that "SMC is not a special type of service connection or

rating, but an ancillary benefit awarded in addition to monthly disability compensation" and is

"akin to an evaluation, like a TDIU [rating]." Id. at 11. Accordingly, the Secretary posits that VA

could seek to reduce that evaluation under §§ 3.105(a)(1), (2), (e), or (h), but it is "not . . . subject

to severance under § 3.105(d)." Id. at 12; see id. at 11-12. The Secretary also explains that, when

conducting a CUE analysis pursuant to § 3.105, "the Board and the RO are required to comply

with § 3.104(c)" regarding favorable findings. Id. at 14. As for the appropriate remedy, the

Secretary seeks to distinguish Horn—holding that where VA failed to carry its burden reversal is

warranted—on the ground that remanding, rather than reversing, in a CUE case would not result

in further development of negative evidence. Id. at 15-16. Rather, he suggests that, according to

Westervelt v. Collins, 38 Vet.App. 206 (2025), remand is the appropriate remedy because the

Board incorrectly applied the law and failed to provide adequate reasons or bases. Secretary's

Supp. Br. at 17.

3. Oral Argument

At oral argument, the Secretary made additional concessions. For example, he

acknowledged that, although the RO in its May 2023 CUE decision mentioned both the 60% and

100% requirements for SMC(s), the RO did not identify any error with regard to the 60%

requirement. Oral Argument (OA) at 29:39-30:34, Stewart v. Collins, U.S. Vet. App. No. 24-0270

(oral argument held July 17, 2025), https://www.youtube.com/watch?v=BuPV67VLE0o. The

Secretary admitted that the RO not having identified error in that regard was a "weakness" in the

Agency's argument that the specific CUE theory before the Board included the 60% requirement.

Id. at 30:35-31:08. The Secretary also agreed that the Board erred in failing to explicitly discuss

or apply § 3.104(c) and § 20.801(a) regarding favorable findings. Id. at 25:09-26:17. Importantly,

the Secretary acknowledged that VA was requesting a remand to better explain why it discontinued

SMC(s) or to again attempt to discontinue that benefit. Id. at 24:35-:45, 26:59-27:06, 29:06-:37.

8

The Secretary essentially disavowed this contention at oral argument, as discussed further below.

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C. Discussion

1. SMC is not Service Connection

The Board applied § 3.105(d) in this case, treating the May 2023 RO decision as if the RO

had severed service connection. See R. at 16-22. As noted above, the parties now concur that

§ 3.105(d) is inapplicable because that subsection applies to severance of service connection, while

SMC is a form of compensation. See Appellant's Supp. Br. at 7, 8; Secretary's Supp. Br. at 11,

12-13; OA at 16:19-:29. The appellant maintains that "the only authority under which VA could

discontinue his SMC based on CUE is [§] 3.105(a)(2)," Appellant's Supp. Br. at 8, while the

Secretary avers that, generally speaking, "VA can seek to discontinue [an] award of SMC under

38 C.F.R. §§ 3.105(a)(1)-(2), (e), or (h)," Secretary's Supp. Br. at 12. The Court agrees with the

parties' understanding of SMC as a rate of compensation. See Butts v. Brown, 5 Vet.App. 532, 539

(1993) (en banc) (stating that the Court reviews questions of law de novo).

"Service connection connotes many factors but basically it means that the facts, shown by

evidence, establish that a particular injury or disease resulting in disability was incurred coincident

with service in the Armed Forces, or if preexisting such service, was aggravated therein." 38 C.F.R.

§ 3.303(a) (2025); see 38 U.S.C. § 101(16) (defining service connected as meaning "that [a]

disability was incurred or aggravated . . . in line of duty"); cf. 38 U.S.C. § 101(17) (defining "non-

service-connected" as a disability that "was not incurred or aggravated . . . in line of duty").

Establishing that a disability is service connected for purposes of entitlement to VA disability

compensation generally requires medical or, in certain circumstances, lay evidence of (1) a current

disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between

the claimed in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Shedden

v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Put differently, service connection is

generally a description attached to a disability denoting that the condition is related to service.

Severance of service connection, then, is an assessment "that a particular disability previously

determined to have been incurred in the line of duty was incurred otherwise." Read, 651 F.3d at

1300; see 38 C.F.R. § 3.105(d).

By contrast, SMC is available when a veteran's service-connected disability or disabilities

cause "additional hardships above and beyond those contemplated by VA's schedule for rating

disabilities." Breniser, 25 Vet.App. at 68; see 38 U.S.C. § 1114(k)-(s). "Congress recognized . . .

that veterans may have additional disabling conditions that warrant extra compensation beyond

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the compensation for a total disability rating. It therefore enacted SMC provisions to provide extra

compensation to 'exceptionally disabled veterans who are rated as totally disabled.'" Barry v.

McDonough, 101 F.4th 1348, 1350 (Fed. Cir. 2024) (emphases added). Indeed, section 1114 is

entitled "[r]ates of . . . disability compensation" and sets forth specific monetary amounts to be

paid to veterans rated between 10% and 100% disabled, as well as the extra dollar amounts that

are warranted for veterans with additional hardships. 38 U.S.C. § 1114(a)-(t). In short, SMC is, as

its name makes clear, a monetary benefit paid monthly to veterans who qualify, and "[t]he rate of

SMC 'varies according to the nature of the veteran's service-connected disabilities.'" Laska

v. McDonough, 37 Vet.App. 460, 463-64 (2024) (emphasis added) (quoting Moreira v. Principi,

3 Vet.App. 522, 524 (1992) (mem. dec.)). Accordingly, generally speaking, the Court concludes

that discontinuing SMC reduces the amount of monthly compensation a veteran receives—by

eliminating the extra compensation for a service-connected disability or disabilities—but that

action does not speak to whether VA continues to recognize his or her disabilities as related to

service. See Barry, 101 F.4th at 1350.

Because the Board, in discontinuing the appellant's SMC(s) and thereby reducing his

compensation, relied on the standards and caselaw applicable to severance of service connection

under § 3.105(d), the Court agrees with the parties that the Board erred in this regard. Although

the parties disagree as to what subsection of § 3.105 the Board should have applied instead—

(a)(1), (a)(2), (e), or (h)—the Board simply did not address the potential applicability of any of

those provisions, including (1) whether the September 2022 RO decision that favorably awarded

SMC had become final or, if it had not, whether § 3.105(a)(1) could apply, see 38 C.F.R.

§§ 3.105(a)(1), (2); see also Secretary's Supp. Br. at 13 (contending that subsection (a)(1) "had no

practical application" in this case, because the September 2022 rating decision was favorable to

the claimant, rendering concepts of finality irrelevant for purposes of VA-initiated CUE);

(2) whether discontinuing SMC amounts to a "[r]eduction in evaluation," 38 C.F.R. § 3.105(e)

(emphasis added); see OA at 12:03-:52 (appellant arguing that subsection (e) would not apply); or

(3) whether a provision dealing with "[o]ther reductions/discontinuances" could be applicable

given that provision's reliance on changes in "income, net worth, dependency, or marital or other

status," 38 C.F.R. § 3.105(h). In sum, resolving that dispute would require the Court to draw legal

conclusions and make findings of fact in the first instance, but "[the Court] must review the Board's

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weighing of the evidence; it may not weigh any evidence itself." Deloach v. Shinseki, 704 F.3d

1370, 1380 (Fed. Cir. 2013).

And in light of the Court's disposition below—reinstating entitlement to SMC(s)—any

pronouncement by the Court on this question would constitute a prohibited advisory opinion.9 See

Teva Pharms. USA, Inc. v. Novartis Pharms. Corp., 482 F.3d 1330, 1337-38 (Fed. Cir. 2007)

(explaining that under the doctrine prohibiting advisory opinions, "federal courts are to decide only

'actual controversies by judgment which can be carried into effect, and not to give opinions upon

moot questions or abstract propositions, or to declare principles or rules of law which cannot affect

the matter in the case before it'" (quoting Local No. 8-6, Oil, Chem. & Atomic Workers Int'l Union

v. Missouri, 361 U.S. 363, 367 (1960))); Norvell v. Peake, 22 Vet.App. 194, 200 (2008). It is

unnecessary to provide guidance to the Board as to what standard the Board should apply on

remand when the proper remedy in this case is reversal. See Quirin v. Shinseki, 22 Vet.App. 390,

395 (2009) ("[T]he Court will not ordinarily consider additional allegations of error that have been

rendered moot by the Court's opinion or that would require the Court to issue an advisory

opinion.").

2. Other Board Errors

As reflected above, SMC(s) is warranted if a veteran "has a service-connected disability

rated as total, and . . . has additional service-connected disability or disabilities independently

ratable at 60[%] or more." 38 U.S.C. § 1114(s)(1); see 38 C.F.R. § 3.350(i)(1). Here, the Board

did not recognize that the RO in May 2023 found CUE in the favorable finding that the appellant

satisfied the 100% requirement. See R. at 16-22; see also R. at 309. Rather, it is undisputed that,

aside from acknowledging that the appellant is in receipt of TDIU and noting that TDIU "can

constitute a single service[-]connected disability,"10 R. at 21, the Board did not address the 100%

requirement of section 1114(s) at all. Instead, the Board found CUE solely in the RO's application

9

For similar reasons, the Court need not resolve the parties' competing arguments regarding the scope of a

VA-initiated benefit discontinuance under the appropriate standard—specifically, whether it would include both the

60% and 100% requirements.

10

As noted above, a TDIU rating may satisfy the 100% requirement for SMC(s) if the veteran's

unemployability is based on a single disability. Bradley, 22 Vet.App. at 293.

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of the 60% requirement.11 R. at 21. Thus, the parties agree that the Board erred in failing to address

the 100% requirement. Appellant's Br. at 11; Secretary's Br. at 10; OA at 2:00-:25, 25:09-26:17.

Next, the Board did not explicitly discuss what favorable findings the RO previously made

in awarding the appellant SMC(s); acknowledge its own obligations to consider favorable findings

binding unless rebutted by "evidence that identifies a clear and unmistakable error," 38 C.F.R.

§§ 3.104(c), 20.801(a); or provide any analysis as to why it was not bound by the favorable

findings. See R. at 16-22. The parties agree that, where VA seeks to discontinue a benefit under

§ 3.105, VA must also comply with § 3.104(c) with regard to any favorable findings, and that the

Board here erred in failing to do so. See Appellant's Supp. Br. at 8-9; Secretary's Supp. Br. at 14;

OA at 25:45-26:43.

3. Remedy

The above discussion reflects that it is undisputed that the Board, in discontinuing the

appellant's SMC(s), (1) erred in conducting its analysis under the rubric of a provision pertaining

to severance of service connection, (2) failed to address the theory proffered by the RO for finding

that the appellant was not entitled to SMC(s)—the 100% requirement, and (3) did not address the

provisions of § 3.104(c) or § 20.801(a) pertaining to favorable findings. In other words, the Board

"attempt[ed] to stop or reduce payment to a veteran" but "failed to comply" with applicable law,

King, 26 Vet.App. at 493, including not using "the appropriate standard," Wilson, 11 Vet.App. at

386. In light of those conceded errors, the Court concludes that VA's discontinuance of SMC(s)

was "fatally flawed." Id. at 387. However, the Court rejects the Secretary's contention that remand,

rather than reversal, is warranted.

In this regard, the Secretary's reliance on the Court's recent decision in Westervelt is

misplaced. See Secretary's Supp. Br. at 17. In that case, the issues before the Court included

(1) whether VA met its burden to discontinue, based on CUE, a separate rating for the veteran's

psychiatric condition and (2) the appropriate staged ratings for that condition for the entire period

on appeal. 38 Vet.App. at 207. Although the Secretary characterizes Westervelt as "vacating and

remanding for readjudication a Board decision addressing a CUE claim initiated by the RO, for

failure to address all material issues of fact or law in the record," Secretary's Supp. Br. at 17, the

Court there found that judicial review was frustrated because the Board had not addressed in a

11

Moreover, the parties agree that the Board's determination regarding the 60% requirement was contrary to

settled law. See Appellant's Br. at 11; Secretary's Br. at 10.

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single decision those two "intertwined issues" and that the Board addressing both together could

"impact or obviate the need for the Court to review the Board's CUE findings." 38 Vet.App. at

208, 214. The Court thus declined to review the Board's CUE analysis at that time. Id. at 214. Here,

on the other hand, a remand could not "obviate the need" for the Court to review the Board's

discontinuance of SMC(s), id.; rather, as VA concedes, the Agency would attempt to better explain

why it discontinued SMC(s) or again attempt to discontinue that benefit, OA at 24:35-:45,

26:59-27:06, 29:06-:37.

In that regard, although the Secretary seeks remand for an additional opportunity to satisfy

his burden, OA at 25:01-:35, 27:25-:32, 29:32-30:03, because "[t]he Court would not remand a

case when a veteran fails to carry a point on which he or she has the burden of proof[, i]t would be

unseemly to so accommodate VA and the Board as to matters on which the Government has the

burden of proof," Horn, 25 Vet.App. at 243-44. The Court acknowledges the Secretary's

contention—raised for the first time at oral argument—that reversal would have "a preclusive

effect" on VA's future ability to attempt to discontinue the appellant's SMC(s), OA at 18:36-21:05,

29:24-:31, but the Secretary did not provide support for this late-raised argument.12 Reversal and

reinstatement, rather than remand, is therefore the appropriate remedy. See King, 26 Vet.App. at

493; Wilson, 11 Vet.App. at 386.

Finally, because SMC is being reinstated and because the matter of entitlement to an

effective date prior to February 28, 2018, 13 for the initial award of SMC(s) is inextricably

intertwined with the question of whether SMC(s) should have been discontinued, the Court will

vacate the Board's decision dismissing as moot the question of an earlier effective date and remand

that matter to the Board for readjudication of that matter. See Harris v. Derwinski, 1 Vet.App. 180,

183 (1991) (explaining that claims are "inextricably intertwined" when a decision on one claim

would have a "significant impact" on the other and "could render any review by this Court of the

decision on the . . . claim meaningless and a waste of judicial resources"), overruled on other

grounds by Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir.

12

We note, however, that the Court has made plain in other circumstances, such as severance of service

connection or a rating reduction, that the Secretary remains free to again attempt to terminate or reduce benefits. See,

e.g., McCauley, 37 Vet.App. at 196-97; King, 26 Vet.App. at 493; Schafrath v. Derwinski, 1 Vet.App. 589, 596 (1991)

(citing Swan v. Derwinski, 2 Vet.App. 72, 73 (1991) (per curiam order)).

13

As noted above, the Board in the decision on appeal restored SMC(s) for the period from February 28,

2018, to August 1, 2023. R. at 20.

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2011), vacated, 565 U.S. 802 (2011), reinstated as modified en banc, 26 Vet.App. 31 (2012) (per

curiam order), aff'd, 732 F.3d 1351 (Fed. Cir. 2013); see also Smith v. Gober, 236 F.3d 1370, 1372

(Fed. Cir. 2001) (holding that, where the facts underlying two claims are "intimately connected,"

the interests of judicial economy and of avoiding piecemeal litigation require the claims to be

appealed together). The Court reminds the Board that "[a] remand is meant to entail a critical

examination of the justification for the decision," Fletcher v. Derwinski, 1 Vet.App. 394, 397

(1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.

III. CONCLUSION

The appeal of that part of the Board's November 1, 2023, decision denying entitlement to

(1) an effective date earlier than October 2, 2012, for the award of benefits for an acquired

psychiatric disorder, including PTSD; (2) a compensable rating for a posterior trunk scar; (3) a

rating in excess of 30% prior to November 1, 2016, and in excess of 50% thereafter for an acquired

psychiatric disorder, including PTSD; (4) a rating in excess of 40% for a back disability; (5) a

rating in excess of 20% for left lower extremity sciatic nerve radiculopathy; (6) a rating in excess

of 20% for right lower extremity sciatic nerve radiculopathy; (7) an effective date earlier than

February 28, 2018, for the 20% rating for left lower extremity femoral nerve radiculopathy; and

(8) a rating in excess of 20% for right lower extremity femoral nerve radiculopathy is DISMISSED.

After consideration of the parties' pleadings and a review of the record, that part of the Board's

decision discontinuing SMC(s) effective August 1, 2023, is REVERSED, and the matter is

REMANDED with instructions to reinstate SMC(s) as of August 1, 2023. That part of the Board's

decision dismissing the matter of entitlement to an effective date earlier than February 28, 2018,

for the award of SMC(s) is VACATED, and that matter is REMANDED for further proceedings

consistent with this decision.

19