Citation Nr: 0928705 Decision Date: 07/31/09 Archive Date: 08/04/09 DOCKET NO. 09-19 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether a June 1994 rating decision granting service connection for a muscle strain of the left neck, rated 10 percent under Diagnostic Code 5233, contains clear and unmistakable error (CUE). 2. Whether a June 1994 rating decision denying service connection for a left elbow disability contains CUE. 3. Entitlement to service connection for residuals of a left elbow fracture with parasthesias. 4. Entitlement to an initial evaluation in excess of 10 percent for a muscle strain of the left neck. WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty with the United States Army from October 1, 1993 to December 13, 1993. He received an uncharacterized discharge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 1994 and September 2008 rating decisions by the Buffalo, New York, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The June 1994 decision denied service connection for a left elbow and hand disability, and granted service connection for a muscle strain of the left neck, rated 10 percent disabling. The September 2008 decision found no CUE in the June 1994 rating decision. The Veteran testified at a May 2008 pre-decisional hearing and at a February 2009 hearing before a Decision Review Officer (DRO) at the RO in connection with his CUE claims. He declined a Board hearing. Transcripts of the local hearings are associated with the claims file. The issues of service connection for a left elbow disability and evaluation of the neck disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Service connection for a left elbow disability was denied in a June 1994 decision; service connection for a neck disability was granted in the same decision and rated 10 percent disabling. 2. The Veteran filed a timely Notice of Disagreement (NOD) with the June 1994 decision in October 1994. A Statement of the Case (SOC) was issued in December 1994. 3. In January 1995, within one year of the June 1994 denial, the Veteran, through his representative, filed correspondence referencing both issues and expressing an intent to pursue his appeals; this correspondence must be accepted as a substantive appeal sufficient to perfect the appeal to the Board. 4. The October 2007 claim of CUE in the June 1994 decision addresses issues currently pending on appeal. CONCLUSIONS OF LAW 1. The Veteran's appeal as to the issue of CUE in the denial of service connection for a left elbow disability is dismissed as no justiciable case or controversy is before the Board at this time. 38 U.S.C.A. §§ 5109A, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.105, 19.4, 20.101, 20.200 (2008). 2. The Veteran's appeal as to the issue of CUE in the assignment of an initial 10 percent rating for a left neck muscle strain is dismissed as no justiciable case or controversy is before the Board at this time. 38 U.S.C.A. §§ 5109A, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.105, 19.4, 20.101, 20.200 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, VCAA notice ands assistance is not required because the issue presented involves a claim for review of a prior final regional office decision on the basis of clear and unmistakable error (CUE). The VCAA is not applicable to CUE matters. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); Parker v. Principi, 15 Vet. App. 407 (2002). In June 1994, the RO issued a decision denying service connection for a left elbow disability and granting service connection for a neck disability, initially rated 10 percent disabling. The Veteran filed an NOD with these decisions in October 1994, and the RO issued an SOC in December 1994. In January 1995, within the one year appeals period from the denial of the claims, the Veteran, through his representative, filed a statement which must be accepted as a substantive appeal on those issues. The Veteran requested a personal hearing, and referenced both the service connection and evaluation issues. He also noted that both were currently on appeal, and that an SOC had been issued. His filing manifests an intent to continue his appeals. Resolving all doubt in favor of the Veteran, this filing is the equivalent of a VA Form 9, Appeal to Board of Veterans' Appeals, and perfects the appeals on both issues. 38 C.F.R. § 20.202. The RO failed to certify the issues to the Board, and the Board has never taken any action on either issue. The appeals remain open. Regulations indicate that only "determinations which are final and binding" are subject to revision based on CUE. 38 C.F.R. § 3.105(a). In this case, no final and binding determination exists as to service connection for the left elbow or the evaluation assigned for the neck disability. The perfected appeal prevented the June 1994 decision from becoming final. Therefore, there can be no valid claim of CUE in that decision at this time; such an allegation is premature. There is no case or controversy pending before the Board as contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R. § 19.4. In the absence of any justiciable question, the claim regarding CUE must be dismissed. ORDER The question of whether a June 1994 rating decision granting service connection for a muscle strain of the left neck, rated 10 percent under Diagnostic Code 5233, contains CUE is dismissed. The question of whether a June 1994 rating decision denying service connection for a left elbow disability contains CUE is dismissed. REMAND As was discussed above, the Veteran has timely perfected appeals with regard to the issues of service connection for a left elbow disability and initial evaluation of a left neck muscle strain. During the pendency of these appeals, the VCAA was enacted. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Adequate notice and assistance has not been afforded the Veteran under the VCAA with regard to either claim, and hence remand is required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited handling is requested.) 1. Provide the Veteran with the notice required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), as well as Court precedent, to include Dingess v. Nicholson, 19 Vet. App. 473 (2006) (regarding notice of assignment of effective dates and disability evaluations). 2. The AMC/RO should specifically request private medical records regarding treatment of the left elbow and arm disability from the time of injury to service, or proper releases to allow VA to obtain such on the Veteran's behalf. The RO should review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated, to include provision of VA examinations. 3. The RO should then readjudicate the claims on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs