Citation Nr: 0501422 Decision Date: 01/18/05 Archive Date: 02/07/05 DOCKET NO. 03-34 853A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an earlier effective date for a disability evaluation of 30 percent for facial scars based on clear and unmistakable error (CUE) in an October 1963 rating decision which assigned an evaluation of 10 percent for that disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from August 1952 to August 1956 and from August 1957 to January 1962. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in September 2003 which denied an effective date earlier than May 25, 1994, for a 30 percent rating for service-connected facial scars. In its decision, the RO noted that earlier rating decisions in the 1960s, which would include a rating decision in October 1963, which assigned an evaluation of 10 percent for the service connected facial scars, were not "clearly erroneous". The Board notes that a rating decision in March 2001 granted an evaluation of 30 percent for facial scars effective May 25, 1994, and that by a letter dated March 30, 2001, the RO notified the veteran of that rating action. In a statement received by the RO in April 2001, the veteran reported that the grant of the 30 percent evaluation satisfied his pending appeal on the issue of entitlement to an evaluation in excess of 10 percent for facial scars. In a statement received on April 11, 2002, the veteran contended that the effective date for the grant of the 30 percent rating for facial scars should be May 29, 1963, the date of his original claim for service connection for facial scars. The veteran and his representative have argued that the October 1963 rating decision should be revised based on CUE in that decision for not assigning a rating higher than 10 percent for the facial scars. The veteran's April 2002 statement did not constitute a timely notice of disagreement with the March 2001 rating decision which assigned the May 1994 effective date for the 30 percent rating for facial scars. See 38 C.F.R. §§ 20.200, 20.201, 20.302(a), 20.305(a) (2004). Therefore, that decision is final. However, the veteran's April 2002 statement, in which he claimed that effective date for a 30 percent rating should be in 1963, may reasonably be construed as a claim of CUE in the October 1963 rating decision which assigned a 10 percent rating for facial scars rather than a higher rating. The RO appeared to address this claim in the September 2003 rating decision in which it noted the prior rating decisions were not "clearly erroneous". Dinsay v. Brown, 9 Vet. App. 79, 87-88 (1996) (holding that claim for earlier effective date was claim of clear and unmistakable error in final RO decision disallowing claim); Flash v. Brown, 8 Vet. App. 332, 340 (1995) (noting that to be awarded earlier effective date, veteran must show clear and unmistakable error in RO decision disallowing higher rating). Thus, the issue currently on appeal is as stated on the first page of this decision. On August 9, 2004, the veteran appeared and testified at a hearing before the Board. A transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The rating decision in September 2003 did not fully consider the veteran's claim that the October 1963 rating decision involved CUE, and the statement of the case furnished to the veteran by the RO in November 2003 did not set forth 38 C.F.R. § 3.105(a), pertaining to revision of RO decisions on the basis of CUE. Further adjudicatory and notification action is thus indicated, and to avoid any potential prejudice to the veteran this case will be remanded for that purpose. See Bernard v. Brown, 4 Vet. App. 384, 392-4 (1993). With regard to the finality of the October 1963 rating decision, the Board notes that at the August 2004 hearing the veteran's representative argued that a portion of the veteran's testimony at a hearing before the Board in April 1964 on the issue of entitlement to service connection for a back disorder constituted a notice of disagreement with the assignment of an evaluation of 10 percent for facial scars by the October 1963 rating decision. A review of the transcript of the April 1964 hearing fails to reveal a statement by the veteran disagreeing with the evaluation assigned by the RO for his facial scars and, in any event, a regulation then in effect, 38 C.F.R. § 19.1e (1964), provided that a notice of disagreement shall be filed with the activity which made the decision being appealed, that is, with the RO, and so the veteran's testimony at a hearing before the Board in April 1964 could not constitute a timely notice of disagreement with the RO's October 1963 decision. Therefore, the October 1963 rating decision is final, see 38 U.S.C.A. § 7105 (West 2002), and the issue currently in appellate status is whether that final RO decision involved CUE. Under these circumstances, this case is REMANDED to the AMC for the following: The AMC should re-adjudicate the veteran's claim for an earlier effective date for a disability evaluation of 30 percent for facial scars based on CUE in the October 1963 rating decision which assigned an evaluation of 10 percent for that disability. In so doing, the AMC should specifically address the veteran's contentions that there were color photographs of his face in the record at the time of the October 1963 rating decision. (The RO noted in its September 2003 rating decision that the 30 percent rating granted in the March 2001 was based in large part on photographs of the veteran's face which were not part of the record at any earlier time. However, as noted at the hearing before the Board in August 2004, color photographs were taken of the veteran's face in connection with a VA examination conducted in August 1963 and these photographs are still in the claims file.) If the decision remains adverse to the veteran, the AMC should furnish the veteran and his representative a supplemental statement of the case which sets forth all applicable laws and regulations of which the veteran has not previously been notified, including 38 C.F.R. § 3.105(a) (2004). The veteran and his representative should be afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate review, if in order. The purpose of this remand is to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the appeal. The veteran has the right to submit additional evidence and argument on the matter which the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ KATHLEEN K. GALLAGHER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2004).