Citation Nr: 0809884 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-21 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE 1. Entitlement to an additional allowance of dependency and indemnity compensation for the veteran being 100 percent permanent and total for eight years or more. 2. Whether there was clear and unmistakable error (CUE) in a December 16, 1988 rating decision in not adjudicating a claim for entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Associate Counsel INTRODUCTION The veteran served on active duty from April 1962 to May 1965. The veteran is deceased and the appellant is the surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In September 2005, the appellant testified before the undersigned Veterans Law Judge at a Board hearing in Washington, DC. A copy of the transcript is of record. In March 2007, the Board remanded the matter for further development. Although further delay is regrettable, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify you if further action is required on your part. REMAND In the March 2007 remand, the Board requested that the AMC adjudicate the inextricably intertwined claim of entitlement to an effective date earlier than July 31, 1991, for the award of service connection for multiple sclerosis based on clear and unmistakable error (CUE) in a December 1988 rating decision in not adjudicating a claim of entitlement to service connection for multiple sclerosis. The Board notes that the only way the appellant can obtain an earlier effective date on the veteran's award of service connection is by a finding of clear and unmistakable error. A freestanding claim for an earlier effective date in a prior final denial does not exist. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (dismissing appeal to the extent the appellant was raising a freestanding claim for an earlier effective date in an attempt to overcome the finality of an RO decision that had assigned an effective date); see also 38 C.F.R. § 20.1106 (claims under 38 U.S.C.A. § 1311(a)(2) will be decided with regard to prior dispositions of the issues during the veteran's lifetime.) Although the AMC considered the issue of CUE in an August 2007 supplemental statement of the case (SSOC), the issue should have been adjudicated in a rating decision. See 38 C.F.R. § 19.31 (2007). The Board does not have jurisdiction of an issue until a notice of disagreement and substantive appeal have been submitted with respect to the issue. However, the Board notes that the SSOC did address the issue and provided reasons and bases for finding there was no CUE in the December 16, 1988 rating decision. The appellant was provided with a copy of the SSOC, and shortly thereafter submitted a letter which can be construed as disagreeing with the conclusion reached in the SSOC. While the SSOC was not the proper format for a decision on a new issue, a remand solely to reissue the decision in a different format would serve no useful purpose, as the appellant has already indicated disagreement with the decision. Thus, the Board finds that the SSOC represents an adjudication of the issue of CUE in the December 16, 1988 decision, and that such a finding does not prejudice the appellant because her September 2007 correspondence is accepted as a notice of disagreement with that adjudication. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, before the Board can take jurisdiction of the issue, a substantive appeal must be submitted. Therefore, the appellant must be issued a statement of the case which provides the pertinent legal criteria governing CUE claims, and be provided with an opportunity to perfect her appeal to the Board by filing a substantive appeal. Accordingly, the Board is required to remand this issue to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the statement of the case, the claim should be returned to the Board only if the appellant perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). As the issue of entitlement to additional DIC benefits is inextricably intertwined with the CUE claim, this issue is also remanded. Accordingly, the case is REMANDED for the following actions: 1. Issue a statement of the case on the issue of whether there was clear and unmistakable error (CUE) in a December 16, 1988 rating decision in not adjudicating a claim for entitlement to service connection for multiple sclerosis, and provide the appellant with an opportunity to perfect an appeal of the issue. 2. Once the appellant files a substantive appeal on the issue of CUE in the December 1988 rating decision or the appeal is closed by the RO due to nonresponse, the issue of entitlement to additional DIC benefits should be reviewed. If the benefit sought on appeal remains denied, the appellant and her representative should be issued a SSOC and given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter 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. 2007). _________________________________________________ K. A. BANFIELD 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) (2007).