Citation Nr: 1042167	
Decision Date: 11/09/10    Archive Date: 11/18/10

DOCKET NO.  09-01 979	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUE

Entitlement to an effective date earlier than September 27, 2007, 
for the grant of service connection for a right knee disability, 
including based upon a claim of clear and unmistakable error 
(CUE) in a January 2003 rating decision.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R. Erdheim, Associate Counsel
INTRODUCTION

The Veteran served on active duty from January 1981 to April 
1992.

This matter comes before the Board of Veterans' Appeals (Board) 
from a May 2008 rating decision of a Department of Veterans 
Affairs (VA) Regional Office (RO) that granted service connection 
for a right knee disability and granted a 10 percent rating, 
effective September 27, 2007.  In July 2008, the Veteran 
disagreed with the effective date assigned.  The RO denied his 
claim for an earlier effective date in a January 2009 Statement 
of the Case.  In August 2010, the Veteran testified before the 
Board at a hearing held via videoconference.

The appeal is REMANDED to the RO via the Appeals Management 
Center, in Washington, D.C.  


REMAND

The Veteran contends that the January 2003 rating decision that 
denied service connection for a right knee disability was clearly 
and unmistakably erroneous, such that he should be awarded an 
earlier effective date for the award of service connection.  
Specifically, he argues that the November 2002 VA examination was 
inadequate in that it did not address whether his right knee 
disability was related to his service, and was outweighed by the 
May 2003 private opinion that his right knee disability was in 
fact related to his service , and therefore his claim should have 
been granted in January 2003, with an effective date of March 13, 
2002. 

In the May 2008 rating decision on appeal, the RO did not 
consider whether the January 2003 rating decision was clearly and 
unmistakably erroneous because that contention was not raised 
until the August 2010 hearing.  Because the RO has not had the 
opportunity to consider the Veteran's claim of CUE in the earlier 
rating decision when adjudicating the claim for an earlier 
effective date for a right knee disability, and the Board may not 
consider a claim of CUE in a rating decision in the first 
instance, the Board has no choice but to remand the claim to the 
RO for consideration of the CUE claim in the first instance.  
Jarrell v. Nicholson, 20 Vet. App. 326 (2006).

Accordingly, the case is REMANDED for the following action:

Readjudicate the Veteran's claim of 
entitlement to an effective date earlier than 
September 27, 2007, for the grant of service 
connection for a right knee disability, 
including consideration of the claim of CUE 
in a January 2003 rating decision.  If the 
decision remains adverse to the Veteran, 
issue a supplemental statement of the case 
and allow the appropriate time for response.  
Then, return the case to the Board.

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 or the 
United States Court of Appeals for Veterans Claims for additional 
development or other appropriate action must be handled in an 
expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 
2009).



_________________________________________________
Harvey P. Roberts
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) (2010).