Citation Nr: 0811697 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-37 533 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an effective date earlier than October 1, 1995, for the grant of VA nonservice connected pension benefits, to include the question of whether a timely notice of disagreement (NOD) was received with respect to a December 1, 1993, VA decision terminating nonservice-connected pension benefits. 2. Entitlement to an effective date earlier than December 16, 2003, for the grant of special monthly pension on the basis of the need for the regular aid and attendance of another person, to include the question of whether a timely notice of disagreement was received with respect to an October 22, 1993, rating decision which denied entitlement to VA special monthly pension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from September 1974 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction over the case was thereafter transferred to the RO in Seattle, Washington. Although the RO has characterized the issue as involving only the question of the timeliness of an NOD as to a December 1, 1993, VA action, after reviewing the veteran's contentions, which are detailed below, the Board has expanded the issue to include the matter of entitlement to an earlier effective date for the award of VA pension benefits. The veteran testified at a hearing held at the Seattle RO in February 2008. Although a fiduciary has been appointed for the veteran, it is the veteran, and not the fiduciary, who is pursuing this appeal. See 38 C.F.R. § 20.301(c) (2007). 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 veteran was granted entitlement to VA nonservice- connected pension benefits in a February 1993 rating decision. That rating decision denied entitlement to special monthly pension in light of his failure to attend a VA examination. In August 1993, VA returned to the veteran a VA Form 21-0515- 1, because he had failed to complete the section describing his income since November 1992; he was asked to complete and return the form. In an October 1993 rating decision, VA again denied entitlement to special monthly pension in light of his failure to attend scheduled VA examinations. In a December 1993 decision, VA discontinued the veteran's entitlement to nonservice-connected pension benefits in light of his failure to complete and return the VA Form 21-0515-1 referenced above. The December 1993 decision provided him with notice of his appellate rights. The next communication from the veteran was received in September 1995. In September 1995, the veteran submitted a VA Form 21-526, on which he provided information concerning his income. In a December 1995 rating decision, VA determined that the veteran remained entitled to nonservice-connected pension benefits, and assigned an effective date of October 1, 1995, for the receipt of such benefits. The veteran was advised of the decision and of his appellate rights with respect thereto. In a February 1996 statement, the veteran requested that his claims file be reviewed with respect to the effective date awarded. He explained that he believed the effective date should be retroactive to at least September 1991. He asked to be advised of the RO's findings after review of the file. In a March 1996 correspondence, the RO explained that an earlier effective date was not warranted because his pension benefits were discontinued in December 1993 after he failed to provide requested financial information, and that he did not provide financial information to VA until September 1995. Following the March 1996 correspondence, no relevant communication from the veteran or any representative was received until April 2003. In the interim, January 1997 and April 1997 rating decisions denied entitlement to special monthly pension for the veteran. In July 1998, special monthly pension on the basis of housebound status was granted, effective April 1998. In July 2004, special monthly pension based on the need for regular aid and attendance was granted, effective December 16, 2003. In April 2003, the veteran wrote VA to request assignment of an earlier effective date for the grant of VA pension benefits. He requested that he receive pension benefits for the period from 1991 to 1995. In the July 2003 action from which this appeal originates, the RO essentially reiterated the March 1996 correspondence. In the October 2003 notice of disagreement, the veteran's former representative, an attorney, disagreed with the earlier effective date issue, and also argued that the October 1993 rating decision was never final because the veteran did not receive notice of the decision. He also presented a plausible argument that the December 1993 decision did not become final owing to certain irregularities in the address to which the notice was sent. In appealing the matter to the Board, the veteran argues that he is entitled to an earlier effective date for the grant of nonservice connected pension, primarily because, in his view, the December 1993 decision never became final. He also argues that his NOD as to the October 1993 rating decision denying entitlement to special monthly pension was timely. He additionally submitted a statement, within one year of the July 2004 rating action granting an earlier effective date for special monthly pension, in which he argued that the effective date for such benefits should be 1991. The Board notes that following his hearing before the undersigned, the veteran, through his current representative, alleged that there was clear and unmistakable error (CUE) with respect to the effective dates assigned in this claim. Unfortunately, it is unclear which VA decision(s) the veteran alleges contain CUE. The recitation of the above history is necessary in order to understand why further action on the part of the RO is required prior to adjudication of this appeal. With respect to the matter of an earlier effective date for VA pension benefits, even if the veteran is correct that the December 1, 1993, decision did not become final, his claim for VA pension benefits was granted in December 1995. At that time, any pending claim for pension benefits was extinguished. See generally, Williams v. Peake, No. 2007-7196 (Fed. Cir. Apr. 3, 2008) (a subsequent final adjudication of a claim which is identical to a pending claim that had not been finally adjudicated terminates the pending status of the earlier claim). Moreover, the veteran did not initiate an appeal of the December 1995 rating decision itself with respect to the effective date assigned for the award of pension benefits. In Rudd v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that VA may not entertain a "freestanding" claim for an earlier effective date. Rather, where the veteran has not timely initiated an appeal as to a decision assigning an effective date, the matter must be dismissed by VA, unless he is challenging the decision on the basis of CUE. Consequently, the veteran's assertion of CUE in one or more of the rating decisions at issue in this case becomes important. If he alleges and establishes CUE in the December 1, 1993 VA decision, then the matter of the timeliness of his NOD as to that decision becomes moot, and the effective date claim will be affected. The same is potentially true if the veteran successfully challenges the December 1995 rating decision. The matter of CUE in a rating decision was raised for the first time while the case was before the Board, and consequently has not been properly developed. Given that the disposition of the raised CUE claim(s) may impact the earlier effective date claim currently on appeal, the Board finds that the current appeal is inextricably intertwined with the raised CUE issue, and that remand of the case is appropriate. With respect to the special monthly pension issue, the Board points out that the veteran's former representative submitted an NOD in August 2004 as to the RO's determination that the October 2003 NOD filed by the representative as to the October 22, 1993 rating action was untimely. In addition, the veteran, within one year of notice of the July 2004 rating action assigning a December 16, 2003 effective date for the grant of special monthly pension based on the need for regular aid and attendance, submitted an NOD as to that rating action. To date, the RO has not issued the veteran a statement of the case addressing either the matter of the timeliness of the October 2003 NOD, or entitlement to an earlier effective date for the grant of special monthly pension. Remand of the case therefore is required. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should request that the veteran identify with specificity the VA decisions he alleges contain CUE. Following clarification from the veteran, the RO should adjudicate the issue of whether there was clear and unmistakable error in the VA decision(s) identified by the veteran. If clear and unmistakable error is found, the RO should readjudicate the issues on appeal. If clear and unmistakable error is not found, the veteran and his representative should be provided notice of the determination and of his appeal rights. Thereafter, if a timely Notice of Disagreement is received, the RO should undertake all appropriate procedural actions outlined in 38 C.F.R. Part 19 (2007). 2. The RO should issue a statement of the case to the veteran and his representative addressing the issue of entitlement to an effective date earlier than December 16, 2003, for the grant of special monthly pension on the basis of the need for the regular aid and attendance of another person, to include the question of whether a timely notice of disagreement was received with respect to an October 22, 1993, rating decision which denied entitlement to VA special monthly pension. The veteran and his representative should be clearly advised of the need to file a timely substantive appeal with respect to the July 2003 and July 2004 VA decisions. If the veteran thereafter submits a timely substantive appeal, the RO should undertake any other indicated development. If, and only if, a timely appeal is submitted, this issue should be certified on appeal to the Board. 3. The RO should issue the veteran a supplemental statement of the case which includes the appropriate citations to the law and regulations governing the assignment of effective dates for the award of pension benefits, including special monthly pension. Thereafter, following receipt of a timely filed Substantive Appeal or the expiration of the appeal period with respect to the issue of whether the VA decision(s) identified by the veteran was(were) clearly and unmistakably erroneous, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant unless he is otherwise notified by the RO. The appellant 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 case 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). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).