Citation Nr: 0845064 Decision Date: 12/31/08 Archive Date: 01/07/09 DOCKET NO. 06-29 381 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to an effective date earlier than September 29, 2005, for the assignment of a 60 percent rating for psoriasis. 2. Entitlement to an effective date earlier than September 29, 2005, for the assignment of a 30 percent rating for irritable bowel syndrome. 3. Entitlement to an effective date earlier than February 18, 2004, for the assignment of a 30 percent rating for a mood disorder. 4. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for hypertension, and, if so, whether service connection is warranted. 5. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for migraine headaches, and, if so, whether service connection is warranted. 6. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for neck and back pain, and, if so, whether service connection is warranted. WITNESS AT HEARING ON APPEAL Veteran REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from June 1986 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the RO in Louisville, Kentucky, which granted increased ratings of 60 and 30 percent for psoriasis and irritable bowel syndrome, respectively, effective September 29, 2005. The issue of an earlier effective date for a 30 percent rating for a mood disorder arises from a December 2004 rating decision. The petitions to reopen service connection claims for hypertension, migraine headaches and neck and back pain arise from a May 2005 rating decision. The veteran testified before the undersigned at a May 2008 videoconference hearing. A transcript has been associated with the file. The veteran has also submitted statements, the first in May 2007, to the effect that his service connected psoriasis and its treatment damages his clothes, creating a financial hardship. The Board finds that these statements are sufficient to make a claim for a clothing allowance. See 38 C.F.R. § 3.810 (2008). The matter is REFERRED to the RO for appropriate action. 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. REMAND The veteran's earlier effective date claims must be remanded to afford the veteran due process. The RO granted a 60 percent rating for psoriasis and a 30 percent rating for IBS in a May 2006 rating decision. The veteran filed a Notice of Disagreement that same month. The RO adjudicated the veteran's disagreement with the effective dates assigned for his 60 percent and 30 percent ratings as earlier effective date claims. While the veteran has pursued the claim as developed by the RO, the veteran's May 2006 Notice of Disagreement also made two motions for revision of prior rating decisions on the basis of clear and unmistakable error (CUE). These motions attempt to establish the same benefit in a collateral attack on prior decisions. The first motion indicates that the November 2003 rating decision implementing his previous 30 percent rating for psoriasis must have been in error because use of a corticosteroid, the grounds for his 60 percent psoriasis rating, had begun in 1997, well before the November 2003 rating decision. He indicated that "the VA would correct the mistake" if he reapplied for benefits. The second motion stated that the RO had mistakenly service connected him for gastroesophageal reflux disease (GERD) and duodenitis in his original October 1998 rating decision, when in fact he had IBS, and bore that diagnosis at that time. Correctly rated, the veteran argues that his initial rating would have been 30 percent, not ten percent. The Board concludes that the veteran has adequately pled these CUE motions. See Russell v. Principi, 3 Vet. App. 310, 313-314 (1992). The RO did not adjudicate either CUE motion. If these motions are granted, the appealed earlier effective date claims presently before the Board would become moot. As a result, the CUE motions and effective date claims are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Accordingly, the effective date claims must be remanded to provide the RO the opportunity to address the CUE motions in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Other matters must also be remanded. The veteran is service connected for a mood disorder. In December 2004, the veteran was granted an increased rating of 30 percent in a RO rating decision. A June 2005 report of contact indicates that the veteran claimed to have filed a claim for reconsideration of the effective date of his recent increase. As this is the only increase in compensation for the prior two years, the Board concludes that the veteran was attempting to disagreement with the effective date determination. The Board concludes that the veteran has submitted a timely Notice of Disagreement as to the effective date for the assignment of a 30 percent rating for a mood disorder. The claim must be remanded to allow the RO to provide the veteran with a statement of the case (SOC) on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16- 92). However, the issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Finally, the veteran has several claims pending which are in various stages of appellate development, to include claims for earlier effective dates and petitions to reopen claims for service connection for hypertension, migraine headaches and neck and back pain. When the veteran testified before the undersigned, only the effective date issues were addressed. There is no indication that he was not given an opportunity to testify as to all of the matters on appeal. Nevertheless, since this case has to be remanded he must be extended the opportunity to present at another hearing to discuss the matters that were not presented at the May 2008 Board videoconference hearing. Accordingly, the case is REMANDED for the following action: 1. The RO should adjudicate the motions of CUE as to the November 2003 rating decision that assigned a 30 percent rating for psoriasis effective from August 30, 2002, and the October 1998 rating decision that assigned a 10 percent rating for GERD. 2. If the CUE motions are denied, the RO should readjudicate the earlier effective date claims on the merits. If the benefits sought are not granted, the veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 3. Provide the veteran with a statement of the case as to the issue of an earlier effective date for the assignment of a 30 percent rating for a mood disorder. The veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. 4. Schedule the veteran for a hearing before a Veterans Law Judge at the RO on the issues of the petitions to reopen, if he so desires, and notify him of the scheduled hearing at the latest address of record. This hearing is to be scheduled in accordance with applicable law. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ K. PARAKKAL 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) (2008).