Citation Nr: 1009109 Decision Date: 03/10/10 Archive Date: 03/17/10 DOCKET NO. 07-38 947 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to an effective date earlier than May 15, 2001, for the award of service connection and for residuals of neck injury residuals, to include on the basis of clear and unmistakable error (CUE) in a May 16, 1996 rating decision. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to August 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO, inter alia, denied an earlier effective date for service connection of neck injury residuals. In March 2008, the Veteran filed a notice of disagreement (NOD) and claimed the presence of CUE, as will be explained in greater detail below. A statement of the case (SOC) was issued in November 2008 in which the Decision Review Officer (DRO) found no CUE in the May 11, 2004 RO decision, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2009. In April 2009, the Board remanded the claim to the RO to afford the Veteran the opportunity to testify at a Board hearing. In June 2009, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. The Board notes that the RO has characterized the claim as entitlement to an effective date earlier than May 15, 2001, for the grant of service connection and the award of compensation for neck injury residuals, based on a claim of CUE in a May 11, 2004 rating decision. (see November 2008 SOC). However, a careful examination of the March 2008 NOD and February 2009 VA form 9 indicates that the Veteran is basing his claim on an assertion of CUE in a May 1996 RO decision. During his June 2009 Board hearing, the Veteran's representative clarified that the Veteran was asserting the presence of CUE in a May 1996 RO decision. Hence, the matter on appeal is appropriately characterized as reflected on the title page. For the reason expressed below, the matter on appeal (recharacterized, as reflected on the title page, for the reasons expressed in more detail, below), the . is, again, being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action on the claim remaining on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In this case, the Veteran originally filed a claim for service connection for a neck disorder, claimed as secondary to service-connected left eye disability, in January 1996. After obtaining the results of an April 1996 VA examination, the RO denied the claim in May 1996. In a May 1996 letter, the Veteran was informed of the denial of his claim. The Veteran did not initiate an appeal with the May 1996 RO decision. See 38 C.F.R. § 20.200 (2009). The RO's May 1996 decision is therefore final as to the evidence then of record. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). In May 2001, the Veteran petitioned the RO to re-open his previously denied claim for service connection for a neck disorder, claimed as secondary to service-connected left eye disability. The RO found that new and material evidence had not been submitted and denied the petition to re-open in November 2001. The Veteran filed an NOD in December 2001. Upon review by a DRO, the petition to re-open was granted, and service connection for a neck disorder, claimed as secondary to service-connected left eye disability, was granted in May 2004, with an effective date of May 15, 2001 (the date the Veteran filed his petition to re-open his claim). In May 2007, the Veteran filed a claim for an earlier effective date for the establishment of service connection for his neck disorder. He stated that he had originally applied for service connection for a neck disorder in January 1996, and therefore the effective date for service connection should be February 1, 1996. In a January 2008 rating decision, the RO denied the Veteran's claim for an earlier effective date. The RO explained that as the RO's original May 1996 denial of service connection was final, the law did not provide for an earlier effective date than May 15, 2001 (the date the Veteran filed his petition to re-open his claim). The Veteran filed an NOD in March 2008. In his NOD, the Veteran essentially stated that he had been granted service connection in May 2004 for a neck disorder based on new and material evidence that was not substantively different from the evidence available at the time of the May 1996 denial. He said "[t]his should indicate CUE." In the November 2008 SOC, the RO did not find CUE in the May 11, 2004 DRO decision and continued the denial of an earlier effective date for the grant of service connection. In his VA form 9 filed in February 2009, the Veteran stated that had the VA developed his claim originally per the Veterans Claims Assistance Act of 2000 (VCAA), the effective date of the grant of service connection would be January 16, 1996. During the June 2009 Board hearing, the Veteran's representative clarified that the Veteran was seeking an earlier effective date for the grant of service connection based on the presence of CUE in the May 1996 RO decision. The Board notes that, while, in connection with the claim for an earlier effective date, the RO considered whether the May 11, 2004 RO decision involved CUE, as the Veteran's representative has clarified, the Veteran is asserting his entitlement to an earlier effective date based on CUE in the May 16, 1996 RO rating decision. As the RO has not considered this matter-an essential component of the Veteran's EED claim-consideration of the EED claim, at this juncture, would be premature. The RO must consider the correct claim of CUE in conjunction with the claim for an EED, in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly,[this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. After completing any additional notification and/or development deemed warranted, the RO should adjudicate the claim for an effective date earlier than May 15, 2001, for the award of service connection for residuals of neck injury to include on the basis of CUE in a May 16, 1996 rating decision. 2,. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. 2009). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2009).