Citation Nr: 0814199 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 07-07 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date prior to September 19, 1997 for the grant of service connection for schizoaffective disorder with a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Dan Brook, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1974 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Los Angeles, California Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for psychiatric disability (i.e. schizoaffective disorder) and entitlement to TDIU, assigning an effective date of September 19, 1997, the date the veteran filed a claim to reopen his claim of service connection for psychiatric disorder. In a March 2004 Notice of Disagreement, the veteran appealed the effective date assigned. A Board videoconference hearing was held on December 12, 2007; a transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The procedural history of this case is as follows. In October 1984 the veteran filed a claim for service connection for psychiatric disorder (i.e. schizophrenia). In April 1985, the RO denied that claim. The veteran did not file an appeal within one year of that decision and thus it is deemed to be final. In September 1997 the veteran filed a claim to reopen and in July 2000 the Board granted reopening of the claim and remanded it back to the RO for further development. In January 2004 the RO granted service connection for psychiatric disability (i.e. schizoaffective disorder) and also granted entitlement to TDIU based solely on the severity of the schizoaffective disorder, the veteran's only service connected disability. An effective date of September 19, 1997, was assigned as this was the date that the veteran's claim to reopen was received. In a subsequent notice of disagreement the veteran disagreed with the assigned effective date. The veteran then later filed a substantive appeal on the effective date issue, thus perfecting the appeal to the Board. The veteran's various contentions are based on two overall theories of entitlement. First, he has essentially indicated that an earlier effective date should be warranted based essentially on the general regulations governing earlier effective dates. Second, in a June 2005 statement, in a March 2007 Form 9 and at his December 2007 Board hearing the veteran alleged clear and unmistakable error (CUE) in the earlier April 1985 rating decision. The issue of CUE in the 1985 decision has not been adjudicated by the RO and the Board does not have jurisdiction to address that issue in the first instance. See Jerrel v. Nicholson, 20 Vet. App 326, 332 (2006). Thus, a Remand is necessary to allow the RO to address the issue of CUE in the April 1985 rating decision. Further, because the veteran's pending claim for an earlier effective date is now based in part, on whether there was CUE in the April 1985 rating decision, the two issues are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998) citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991(two or more issues are inextricably intertwined if one claim could have a significant impact on the other). Thus, the Board will also remand the pending earlier effective date claim to avoid piecemeal adjudication. On Remand, the RO should ensure that the veteran has received adequate VCAA notice pertaining to the current claim for an earlier effective date. Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided VCAA notice pertaining to his claim for an earlier effective date in the form of a specific notice letter that is in compliance with the applicable statutes, implementing regulations, and precedent interpretative decisions of the United States Court of Appeals for Veterans Claims and the United States Federal Circuit. 2. The RO should adjudicate the issue of whether there was CUE in the April 1985 rating decision that denied service connection for schizophrenia. 3. The RO should then readjudicate the veteran's claim for an effective date earlier than September 19, 1997, for the grant of service connection for schizoaffective disorder with TDIU. If this claim, currently in appellate status, is not granted to the satisfaction of the veteran, the RO should issue an appropriate supplemental statement of the case. The veteran and his representative should then be provided the opportunity to respond. The case, including the veteran's claim for CUE, (if the veteran has perfected an appeal on this issue) should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is notified. 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 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). _________________________________________________ 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 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).