Citation Nr: 1300347	
Decision Date: 01/04/13    Archive Date: 01/11/13

DOCKET NO.  07-32 911	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an effective date prior to September 6, 2006, for a 100 percent evaluation for organic mood disorder and organic amnestic disorder as a residual of head trauma.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Barstow, Counsel



INTRODUCTION

The Veteran had active military service from February 1965 to January 1969.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

The Board notes that the Veteran requested an in-person hearing at the RO before a Veterans Law Judge, but withdrew his request for a hearing through written correspondence, received in February 2009.  The Veteran having withdrawn his hearing request, the Board will proceed to review the case based on the evidence of record.  See 38 C.F.R. § 20.704 (e) (2012).

The Board remanded the case for additional development in August 2011.  The case has now been returned for further appellate review.

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.


REMAND

In the remand of August 2011, the Board instructed that the issue of whether there was clear and unmistakable evidence (CUE) in a March 12, 1996, rating decision should be addressed.  The Board noted that the Veteran's representative argued that the March 12, 1996, rating decision committed CUE by failing to apply 38 C.F.R. § 4.16 and establishing a 100 percent evaluation based on a December 1995 VA examination.  

Although the AMC issued a June 2012 supplemental statement of the case (SSOC) readjudicating the Veteran's claim for an earlier effective date, such did not address the claim of CUE identified above.  Where the remand orders of the Board or the United States Court of Appeals for Veterans Claims (Court) are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated.  Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

1.  Consider entitlement to an effective date prior to September 6, 2006, for the 100 percent evaluation for organic mood disorder and organic amnestic disorder due to head trauma on all bases, to include the allegation of clear and unmistakable error in the March 12, 1996, rating decision that confirmed and continued a previous 50 percent evaluation.  Specifically, the Veteran's contention that the March 12, 1996, rating decision committed clear and unmistakable error by failing to apply 38 C.F.R. § 4.16 and establish a 100 percent evaluation should be addressed.

2.  After the development requested above has been completed to the extent possible, if any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  This should include all laws and regulations pertinent to revisions based on clear and unmistakable error in prior rating decisions.

Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The Veteran need take no action until otherwise notified.  

The Veteran 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. 2012).



_________________________________________________
MICHAEL MARTIN
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) (2012).