Citation Nr: 1306457	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  07-11 639	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to specially adapted housing.

2.  Entitlement to an effective date prior to June 30, 2003 (to the extent of assigning an effective date of April 30, 1974) for the grant of service connection for thrombophlebitis of the right leg.

3.  Entitlement to an effective date prior to April 30, 1974 for the grant of service connection for thrombophlebitis of the right leg.

4.  Whether there was clear and unmistakable error (CUE) in a July 1974 rating decision in that it allegedly failed to adjudicate a claim of service connection for thrombophlebitis of the right leg.

5.  Entitlement to an effective date prior to February 21, 2007 for a 70 percent rating for post-traumatic stress disorder (PTSD).

6.  Entitlement to a rating in excess of 70 percent for PTSD.

7.  Entitlement to a rating in excess of 60 percent for thrombophlebitis of the right leg.

8.  Entitlement to a rating in excess of 60 percent for thrombophlebitis of the left leg.

9.  Whether there was CUE in a June 1970 rating decision in that it did not assign a compensable rating for eczematoid dermatitis of the feet.


REPRESENTATION

Appellant represented by:	Agnes S. Wladyka, Attorney at Law


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from August 1965 to August 1967.  These matters are before the Board of Veteran's Appeals (Board) on appeal from rating decisions of the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO).  In September 2007, a Travel Board hearing was held before the undersigned.  A transcript of the hearing is associated with the claims file.  The Board remanded issues to the RO for development in February 2008 and June 2010.
The issue of whether there was CUE in the June 1970 rating decision in that it did not assign a compensable rating for eczematoid dermatitis of the feet, which was decided by the RO in April 2011, has not yet been addressed by a statement of the case (SOC).  The Board finds that the Veteran's attorney's July 2011 statement (clarifying an April 2011 notice of disagreement (NOD)) timely initiated an appeal on this issue.  Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), when this occurs, the Board must remand the case and instruct the RO that the issue is in appellate status (see 38 C.F.R. § 3.160(c) (2012)) and requires further action.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 19.26 (2012).

The April 2011 RO rating decision and April 2011/July 2011 NOD also address issues concerning whether there was CUE in a July 1974 rating decision for denying service connection for (1) multiple pulmonary emboli and (2) thrombophlebitis of the left leg.  These CUE claims, however, involve issues upon which there has been an intervening Board decision.  Following the July 1974 RO rating decision targeted by the allegations of CUE, the Veteran appealed the issues to the Board and a November 1975 Board decision denied service connection for (1) multiple pulmonary emboli and (2) thrombophlebitis of the left leg.  When the Board affirms a determination of the agency of original jurisdiction (AOJ), such AOJ determination is subsumed by the final appellate decision.  38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103, 20.1104.  The November 1975 Board decision is final, and subject to revision only by Motion of CUE or Motion for Reconsideration filed at the Board.  See 38 U.S.C.A. §§ 7104, 7111; 38 C.F.R. §§ 20.1100, 20.1104(a)(1), 20.1400.

The Board explains this matter to ensure that the Veteran understands how to properly pursue the benefits sought.  A November 1975 Board decision denied his claims of service connection for multiple pulmonary emboli and thrombophlebitis of the left leg.  That decision is final, subsumed any prior RO rating decisions in those matters, and is a legal bar to a claim of CUE in the prior RO decisions.  Such bar may only be removed by a prevailing motion of CUE in the Board decision or a prevailing motion for Reconsideration of the Board decision (both made directly to the Board).  See 38 C.F.R. §§ 20.1000, 20.1001, 20.1400, 20.1404.  The Veteran and his attorney indicated at the September 2007 hearing that they might file a motion alleging CUE in the November 1975 Board decision.  The undersigned advised them at the hearing that such motion had to be filed at the Board.  Such motion has not yet been filed.

Because Board decisions are legal bars to claims of CUE in prior RO decisions on the same issues, as the prior RO decisions are subsumed by the Board decision, the Board cannot recognize the April 2011 RO rating decision and the April 2011 / July 2011 NOD to the extent that they address allegations of CUE in the July 1974 RO rating decision denying service connection for (1) multiple pulmonary emboli and (2) thrombophlebitis of the left leg.  The proper forum to challenge the propriety of the denial of the issues adjudicated in the July 1974 RO rating decision in which CUE is alleged would be to file either a motion for reconsideration or a motion alleging CUE in the November 1975 Board decision that denied the appeal of those denials; the proper filing of either motion is with the Board.

Additionally, the Board observes that two of the issues on appeal seek essentially the same benefit through application of different provisions of law.  The issues of (1) entitlement to an effective date prior to June 30, 2003 for the grant of service connection for thrombophlebitis of the right leg, and (2) whether there was CUE in a July 1974 rating decision which allegedly failed to adjudicate a claim for service connection for thrombophlebitis of the right leg, both seek revision of the effective date of the grant of service connection for thrombophlebitis of the right leg.  Significantly, the Board notes that both issues arise from fundamentally the same essential assertion: the Veteran alleges that a claim of service connection for right leg thrombophlebitis was filed prior to the July 1974 RO rating decision, and that such a claim remained an unadjudicated pending claim through the time of the eventual grant of service connection for the disability.  Notably, the laws governing effective dates based upon unadjudicated pending claims require a lower standard of proof for revising an effective date than do the laws governing findings of CUE in prior rating decisions.  The Board notes that a claim of entitlement to an earlier effective date on the basis of a pending unadjudicated claim is the primary avenue to entitlement advanced by the Veteran with regard to this issue.  As discussed below, the Board finds that revision of the effective date for the grant of service connection for thrombophlebitis of the right leg is warranted on the basis of finding that on April 30, 1974  the Veteran filed a claim for such benefit that was not adjudicated, but remained pending until the eventual grant of the benefit.

This matter was twice previously remanded, and has been pending for a number of years.  The Board seeks to avoid unnecessary further delay in awarding the Veteran the revised effective date of April 30, 1974 for the grant of service connection for thrombophlebitis of the right leg; the Board also seeks to properly organize the issues so as to avoid premature adjudication of matters intertwined with pending issues requiring AOJ attention.  Accordingly, for reasons that will become evident from the discussion below,  the Board has split this effective date issue into two segments:  The first entitlement to an effective date prior to June 30, 2003 for the grant of service connection for thrombophlebitis of the right leg; the other entitlement to an effective date prior to April 30, 1974 for the grant of service connection for thrombophlebitis of the right leg; (appellate consideration of the latter is deferred pending resolution of the inextricably intertwined CUE claim by the AOJ (as discussed in the remand, below)).

While "piecemeal" adjudication should generally be avoided, under the circumstances of this case the Board finds it in the interest of the Veteran and expediency (and not a violation of due process) to partially adjudicate the matter, as explained below.  The Board must defer any final appellate determination regarding  an effective date prior to April 30, 1974 for the grant of service connection for thrombophlebitis of the right leg; as the effective date question is inextricably intertwined with a CUE issue which is being remanded.  The Board's February 2008 remand in this case has already discussed that the allegation of CUE in the July 1974 RO decision (on the basis of a failure to adjudicate a pending claim of service connection for right leg thrombophlebitis) is inextricably intertwined with the earlier effective date issue concerning the same award.  A finding by the Board at this time concerning the Veteran's contention that correspondence in 1968 constituted a claim of service connection for right leg thrombophlebitis would interfere with possible AOJ consideration of the same question with regard to the CUE claim.  The CUE and the effective date issues must be addressed concurrently by the AOJ prior to final appellate review of the remaining portion of the effective date issue on appeal.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).
Recent documentation in the claims file, including an October 2012 internal RO memorandum, suggests that new NODs may have been recently filed by the Veteran and/or his attorney.  The Board's review of the record did not uncover such NODs (they are not associated with the claims file or in the current Virtual VA record).  Under these circumstances, the Board is unable to take action mandated by the U.S. Court of Appeals for Veterans Claims (Court) in Manlincon v. West, 12 Vet. App. 238, 240 (1999).  This matter is referred to the RO for clarification and any appropriate action.

In March 2011, the Veteran requested special monthly compensation based on the need for regular aid and attendance.  However, such benefit was granted in April 2007 and remains in effect.  Accordingly, no further action is necessary.

The issue of entitlement to an effective date prior to June 30, 2003 (to the extent addressed below) for the grant of service connection for right leg thrombophlebitis is the only issue being addressed on the merits.  All other issues on appeal are being REMANDED to the VA Regional Office.  The Veteran will be notified if action on his part is required.


FINDINGS OF FACT

1.  A July 2005 rating decision granted the Veteran service connection for right leg thrombophlebitis, effective June 30, 2003 (the date on which the RO received a statement seeking service connection for such disability).

2.  The Veteran had previously (on April 30, 1974) submitted a statement requesting service connection for right leg thrombophlebitis that was not expressly adjudicated, but remained pending.

3.  While service connection for right leg thrombophlebitis may be deemed implicitly denied by a July 1974 RO rating decision, the Veteran filed a timely (May 1975) NOD with that rating decision; a statement of the case (SOC) was not issued in response.
CONCLUSION OF LAW

An earlier effective date of April 30, 1974 is warranted for the award of service connection for right leg thrombophlebitis.  38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claims.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

As the July 2005 rating decision that is on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  A February 2007 SOC properly provided notice on the "downstream" issue of an earlier effective date of award and readjudicated the matter after the Veteran and his representative responded and further development was completed.  38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  The Veteran has had ample opportunity to respond/supplement the record.  It is not alleged that notice in this matter was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error).

All evidence relevant to the matter addressed on the merits has been secured.  Notably, determinations regarding effective dates of awards are based essentially on what was shown by the record at various points in time and application of governing law to those findings.  Generally, further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding.  The appellant has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

B. Legal Criteria, Factual Background, and Analysis

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).  An informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).  If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim.  If so, the claim is denied; if the evidence is in support of the claim, or is in equal balance, the claim is allowed.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Board notes that it has reviewed all of the evidence in the Veteran's claims file (and in Virtual VA), with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

On June 30, 2003, the RO received correspondence from the Veteran raising claims including entitlement to service connection for "bilateral legs, phlebitis."  A January 2004 RO rating decision denied the claim.  After the Veteran appealed the denial, a July 2005 RO rating decision granted service connection for thrombophlebitis of the right leg (among other determinations), assigning an effective date from June 30, 2003.  The June 30, 2003 effective date for the grant of service connection was determined on the basis that the RO considered this to be the date of the claim leading to the grant of service connection.

In June 2006, the Veteran filed a timely NOD with the RO's assignment of effective date for the grant of service connection for thrombophlebitis of the right leg.  The June 2006 statement expressed that the Veteran "would like to have his disability dated from 1968 when he first addressed the need for help."

As is noted in the Introduction above, merits consideration at this time is limited to whether an effective date of April 30, 1974 is warranted; therefore, at this time the Board shall omit discussion of the evidence prior to that date.

On April 30, 1974 the Veteran submitted a formal claim seeking service connection for "thrombosis."  He specified that the condition began in "March-May 1973 - Rahway Hospital" and also in "Dec - Jan, 1 1973-1974" at Rahway Hospital.
In May 1974, the Veteran submitted an April 1974 statement from his private medical provider reporting that the Veteran "was injured at Viet Nam in 1966 and has since had trophic changes of both legs distally with chronic pain and swelling in the calves and ankles."

In June 1974, the Veteran submitted to the RO a copy of pertinent private medical reports from Rahway Hospital.  One report concerning a March-April 1973 hospitalization indicates that the Veteran described that "[o]n the evening prior to admission his right leg from the groin to the toes became blue for a few minutes and then this remitted.  While in VietNam in 1965 he sustained a superficial injury to the right leg with a punjistick."  The other report, a December 1973 hospitalization summary, refers to the Veteran having been previously hospitalized "and at that time he had a deep femoral phlebitis, right leg."

A May 1974 VA examination report shows the Veteran's complaints including blood clots, pain, swelling, constant leg cramps, and loss of work due to phlebitis.

A July 1974 rating decision, in pertinent part, denied service connection for "phlebitis, left leg," and did not expressly address any right leg service connection claim.

The Board finds that the Veteran's April 30, 1974 claim, especially as clarified by his proximate subsequent submissions, included a claim of service connection for right leg thrombophlebitis (as the claim concerned thrombophlebitis of both legs).  The Board also notes that the Veteran submitted medical records showing that he had deep femoral phlebitis of the right leg diagnosed prior to the April 1974 claim.  The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations.  See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).

The Board has considered that the July 1974 rating decision may be deemed to have implicitly denied the right leg claim.  See Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006) (if the record shows the existence of an unadjudicated claim, raised along with an adjudicated claim, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.).  However, the Veteran filed a timely NOD with the July 1974 RO rating decision; that (May 1975) NOD expresses disagreement and a desire to appeal the rating with regard to thrombophlebitis of both legs: "my doctor and myself feel that the thrombophlebitis of my right leg and left leg ... are all adjunct and directly attributable to the pungee stick that I stepped on while serving in Republic of Viet Nam."  In June 1975, the RO issued a SOC addressing claims of service connection for left leg disability and multiple pulmonary emboli; the Veteran perfected an appeal of those issues to the Board in June 1975; and in November 1975 the Board issued a decision denying the appeal as to those two issues.  The Board's November 1975 decision did not address a right leg claim.

The Board finds that on April 30, 1974 the Veteran filed a claim seeking service connection for right leg thrombophlebitis, and that such claim remained pending after the Board's November 1975 decision on different issues.  The July 1974 RO rating decision did not expressly address the right leg issue.  Even if such claim was to be deemed implicitly denied by the July 1974 RO rating decision, the Veteran filed a timely and specific NOD with such denial of the claim, and no SOC was issued to address the right leg matter.  

Following the November 1975 Board decision, there was no new adjudication of the right leg issue either by rating decision or by SOC prior to the June 30, 2003 filing of a new claim of service connection for the right leg disability.  The right leg issue remained pending and unresolved throughout those years, and was still pending at the time of the June 30, 2003 claim which prompted the eventual grant of service connection for right leg thrombophlebitis.

The Board finds that the April 30, 1974 statement from the Veteran reasonably raised a claim of service connection for thrombophlebitis of both legs (including the right).  Evidence submitted by the Veteran in support of the April 1974 claim reasonably asserted that right leg thrombophlebitis was believed to be linked to the Veteran's service.  The evidence of record reasonably shows that the Veteran had manifestations of right leg thrombophlebitis prior to filing his April 1974 claim for service connection.  An effective date of April 30, 1974, is warranted for the award of service connection for the right leg thrombophlebitis


ORDER

An earlier effective date of April 30, 1974, is granted for the award of service connection for thrombophlebitis of the right leg, subject to the regulations governing payment of monetary awards.  (The matter of entitlement to an effective date prior to April 30, 1974 for this benefit remains pending, and is discussed in the remand below.)


REMAND

In an August 2008 letter the Veteran identified private treatment records that had not been associated with the record pertaining to the matters of the ratings for thrombophlebitis of the legs and for PTSD and whether an effective date earlier than February 21, 2007 is warranted for a 70 percent rating for PTSD.  He provided authorizations for the release of such records.  In June 2010, the Board remanded the issues involving ratings for thrombophlebitis of the legs and PTSD and the effective date for a 70 percent rating for PTSD to secure those pertinent private treatment records.  The RO was to use the authorizations of record or obtain new ones if necessary (i.e., if the prior authorizations expired or were inadequate).  The record does not reveal any action taken by the RO to implement this instruction.

In May 2012, the Veteran's attorney submitted ten VA Forms 21-4142 which were signed by the Veteran but did not indicate which providers they were for, the dates of treatment, or the conditions treated.  Some private medical records which were not duplicates of evidence previously received were submitted, but they were not all-inclusive of the records which the Veteran had identified in August 2008.  As the RO has not complied with the Board's June 2010 orders, remand is required.  Stegall v. West, 11 Vet. App. 268 (1998).  Additionally, any other records which the Veteran wishes the Board to consider, besides those previously requested by the Board, should be obtained.

Under 38 C.F.R. § 3.809 entitlement to specially adapted housing may be granted when there is loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.  The Board's consideration of entitlement to specially adapted housing is deferred pending completion of the actions on remand (as medical records identified and being sought may support entitlement to such benefit).

Under 38 U.S.C.A. § 7105(a), an appeal to the Board is initiated by a NOD and completed by a substantive appeal after a SOC is furnished.  In essence, the following sequence is required: There must be a decision by the RO, the claimant must express timely disagreement with the decision (by filing an NOD within one year of the date of mailing of notice of the RO decision), VA must respond by explaining the basis of the decision to the claimant (by a SOC), and finally, the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal.  See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.204.

Here, an April 2011 rating decision denied the Veteran's claim of CUE in the June 1970 rating decision in that it denied a compensable rating for eczematoid dermatitis of the feet.  In a statement received in April 2011 (and clarified in a statement received in July 2011), the Veteran's attorney disagreed with this April 2011 decision.  The RO has not issued an SOC addressing this issue.  Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), when this occurs, the Board must remand the case and instruct the RO that the issues remain pending in appellate status (see 38 C.F.R. § 3.160(c) (2012)) and require further action.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26 (2012).

Also, in April 2009, the RO found that there was no CUE in a July 1974 rating decision for failing to adjudicate a claim for service connection for thrombophlebitis of the right leg.  In July 2009, it informed the Veteran of this decision and of his right to appeal.  He disagreed with that determination in August 2009.  The RO had not issued a SOC by the time of the June 2010 Board remand, and so the Board remanded the issue, under Manlincon v. West, 12 Vet. App. 238 (1999), to have the RO issue the Veteran a statement of the case.  The Board directed the RO to advise the Veteran of the time limit for filing a substantive appeal, and that in order for the Board to have jurisdiction in the matter, he must submit a timely substantive appeal.  In September 2010, the RO issued the Veteran a SOC on this matter.

The only subsequent VA Form 9/substantive appeal regarding this issue of record is dated (and was received) in July 2011, and no other relevant evidence was received within the remainder of the one year period after the July 2009 notice of the April 2009 adverse determination.  Such substantive appeal is not a timely substantive appeal under 38 C.F.R. § 20.302 (which requires that a substantive appeal be filed within 60 days after mailing of the SOC; or within one year from the date of notice of the adverse determination; or, if the claimant submits additional evidence within one year of the date of the mailing of the adverse determination, and that evidence requires a supplemental SOC (SSOC), then within 60 days after the SSOC was mailed).  Nevertheless, in August 2002, without any explanation, the RO issued a SSOC on this issue of CUE.  Clarification by the RO and from the Veteran/his attorney is needed .  [The Board notes that addressing the Veteran's right leg thrombophlebitis effective date contentions under the CUE theory may lead to a dismissal on the basis of there not being a timely substantive appeal; if the Veteran maintains the claim of CUE regarding the right leg thrombophlebitis effective date, the Veteran/his attorney should be asked to identify when they submitted a substantive appeal to perfect an appeal in this matter.]  

The Board defers consideration of entitlement to an effective date prior to April 30, 1974 for the grant of service connection for right leg thrombophlebitis (the portion of the effective date issue remaining on appeal after the Board's partial grant above) until the development sought above is completed.

The Veteran is advised that a governing regulation provides that when evidence or information (to include adequate releases for private records) requested  in connection with a claim for VA benefits is not received within a year following the request the claim is to be considered abandoned.  38 C.F.R. § 3.158(a).

Accordingly, the case is REMANDED for the following:

1.  Issue an appropriate SOC on the matter of whether there was CUE in the July 1970 RO rating decision in that it did not assign a compensable rating for eczematoid dermatitis of the feet.  The appellant and his attorney must be advised of the time limit for filing a substantive appeal, and that, in order for the Board to have jurisdiction in this matter, a timely substantive appeal must be filed.  If that occurs, the matter should be returned to the Board for appellate consideration, if otherwise in order.

2.  Associate with the record the complete clinical records of any private treatment from the following providers, using the authorizations of record, or obtaining additional authorizations from the Veteran, if necessary (i.e. if prior authorizations have expired, or are inadequate):

a. Records dated from 2003 to 2006 from Dr. Norman Luka and Dr. Mark Kumar, Cardiovascular Care Group, 1801 East Second Street, Scotch Plains, NJ 07076; and

b. Records dated from 2004 to the present from Dr. Gerard Malanga, Director of Pain Management, Overlook Hospital, Summit, NJ 07960; and

c. Records from 1995 to the present from Dr. Rosen, Primary Care Doctor, 453 Amboy Avenue, Woodbridge, NJ 07095; and

d. Records from 1995 to 2006 from Dr. Bruce Wallach, Center for Cancer & Blood Disorders, 65 James Street, Edison, NJ 08818; and

e. Records from 2005 to 2006 from Dr. Gary Breitbart, Garden State Surgical Associates, 1511 Park Avenue, South Plainfield, NJ 07080; and

f. Records from 2006 to the present from Dr. Sunil Thacker, Edison Orthopedic Institute, 1656 Oak Tree Road, Edison, NJ 08820; and

g. Records from 2006 from Dr. Vailios Velmahos, NJ Infectious Diseases Associates, 113 James Street, Edison, NJ 08820; and

h. Inpatient treatment records from 2004 from Overlook Hospital, 99 Beauvoir Avenue, Summit, NJ 07907; and

i. Inpatient treatment records from 2006 from JFK Hospital, 65 James Street, Edison, NJ 08818.

j. The records of any additional health care providers which the Veteran indicates and authorizes VA to obtain on his behalf.

If any private records sought are not furnished pursuant to the RO's request, advise the Veteran (and his attorney) that ultimately it is his responsibility to ensure that pertinent private records are received; and afford them the opportunity to submit such records.

3.  The RO must clarify what correspondence from the Veteran or his attorney constitutes a timely substantive appeal to the RO's April 2009 decision regarding the issue of whether there was CUE in a July 1974 rating decision in that it allegedly failed to adjudicate a claim of service connection for right leg thrombophlebitis.  The RO should contact the Veteran's attorney to clarify whether a further earlier effective date (i.e., earlier than April 30, 1974) for the grant of service connection for right leg thrombophlebitis is still sought under one or both theories of entitlement previously proposed (under the laws governing the assignment of effective dates and/or based on a theory of CUE).  If the Veteran maintains the claim of CUE in connection with the right leg thrombophlebitis effective date, the Veteran and/or his attorney should be asked to identify the document submitted that constitutes a substantive appeal in the matter.

If the RO determines that there was no timely appeal on this CUE matter, it should inform the Veteran and his attorney of this determination and of his right to appeal it.  If an appeal as to the timeliness of a substantive appeal is perfected, return that issue to the Board for appellate consideration.  If the RO determines that there was a timely appeal of the April 2009 decision, it should issue a SSOC indicating what document received constitutes such timely substantive appeal, indicate when it was received, and then return the issue to the Board.  Since the Board has deferred its decision on the matter of entitlement to an effective date prior to April 30, 1974 for the grant of service connection for thrombophlebitis of the right leg, the RO should issue a SSOC on that matter prior to returning the case to the Board.

4.  The RO should ensure that all development outlined above is completed, and then readjudicate the claims.  If any claim remaining on appeal remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his attorney the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

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).

These claims 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).


______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs