Citation Nr: 1304952	
Decision Date: 02/11/13    Archive Date: 02/21/13

DOCKET NO.  12-19 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an effective date earlier than May 8, 2003, for service connection for basal cell carcinoma of the left cheek.


REPRESENTATION

Appellant represented by:	L. W. Stokes Jr., Agent


WITNESSES AT HEARING ON APPEAL

The Veteran and M. P. 


ATTORNEY FOR THE BOARD

C. Fetty, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). 

The Veteran performed active military service from November 1943 to March 1946 and from January 1947 to February 1950.  

This appeal arises to the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that granted an earlier effective date of May 8, 2003, for service connection for basal cell carcinoma of the left cheek.  The Veteran has appealed for an effective date retroactive to 1975 for service connection for basal cell carcinoma.  

During a recent videoconference hearing before the undersigned, the Veteran testified about increasing sinus problems caused by residuals of basal cell carcinoma of the left cheek.  This is referred to the RO as a claim for an increased rating for these residuals.    

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

On his VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran raised a new theory of entitlement to an earlier effective date for grant of service connection for basal cell carcinoma.  He alleged that an RO decision issued in August 1975, which denied service connection for a nervous disorder claimed due to ionizing radiation exposure, is based on clear and unmistakable error (hereinafter: CUE).  The RO has not reviewed and considered this argument in a supplemental statement of the case (SSOC) and the Veteran has not waived his right to initial RO review of this argument.  To the extent that this new theory of entitlement to the benefit sought is new evidence in the matter, it must be considered by the RO prior to Board consideration, unless the Veteran waives his right to such consideration by the RO.  Thus, a remand will be necessary for this procedural safeguard.  See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).

Accordingly, the case is REMANDED to the RO (private agent representation) for the following action:

1.  The RO must review the claims files and ensure that all notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103A, (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012).  

2.  The RO should review the Veteran's recent substantive appeal, which contains a claim of CUE in an August 1975 RO rating decision, and then re-adjudicate the earlier effective date claim.  If all the desired benefits are not granted, an appropriate SSOC should be furnished to the Veteran and his agent.  They should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board for further consideration.  

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 unless 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 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).



_________________________________________________
L. M. BARNARD
Acting 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).