Citation Nr: 1307286 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 07-15 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an effective date earlier than April 1, 1984, for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for traumatic brain injury (TBI) and organic brain injury (OBI). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. This matter came to the Board of Veterans' Appeals (Board) from a December 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to an effective date earlier than April 1, 1984, for the grant of service connection for PTSD. In the statement of the case issued in March 2007, the RO included regulatory provisions pertaining to the revision of prior decisions on the basis of clear and unmistakable error. It told the Veteran that it had noted his contention that there had been clear and unmistakable error in prior decisions, but told him that "a claim of clear and unmistakable error cannot be considered because we do not have the original claims folder to determine if a clear and unmistakable error was made" in prior rating decisions that denied service connection for a "nervous condition." In a July 2010 decision, the Board denied entitlement to an effective date earlier than April 1, 1984 for the grant of service connection for PTSD, to include on the basis of clear and unmistakable error (CUE). The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). Per a Memorandum Decision issued in June 2012, the Court set aside the Board's decision and remanded the appeal for further adjudication. 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 Memorandum Decision, it was held that the Board was without jurisdiction to address an assertion of CUE as such issue had not been decided by the RO. CUE is another theory of entitlement to an earlier effective date. Huston v. Principi, 18 Vet. App. 395-9 (2004). Thus, the Board cannot fully address the effective date issue without considering the allegation of CUE. The Veteran's claim of CUE, initially raised in a September 2003 submission, must be remanded to the Agency of Original Jurisdiction (AOJ) for adjudication. In the Board' prior decision, the issue of entitlement to service connection for traumatic brain injury (TBI) was referred to the AOJ for appropriate action. In the Memorandum Decision, the Court held that the claim for TBI and organic brain injury (OBI) were encompassed in the Veteran's claim for benefits for PTSD and remand, not referral, was appropriate. The Courts determination that these claims must be remanded is the law of the case and is binding upon the Board, and the Board has a duty to insure that the Court's instruction is carried out. Stegall v. West, 11 Vet. App. 268 (1998). A December 1991 response from the National Personnel Records Center (NPRC) reflects that the Veteran's claims folder was not found. A December 1991 VA Memorandum reflects that the Veteran's claims folder was not found and that it was rebuilt. Thus, the Veteran's claims folder only contains documentation dated from December 1991 and thereafter. The evidence is clear, however, that service connection for PTSD has been in effect since April 1, 1984. VA will make as many requests as are necessary to obtain relevant records from a Federal Department or agency. 38 C.F.R. § 3.159(c)(2) (2012). Additional attempts should be made to obtain the Veteran's claims folder or documentation pertaining to the Veteran from the NPRC, Department of the Army, Joint Services Records Research Center (JSRRC), and any other appropriate repository. 38 U.S.C.A. § 5103A(a), (b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(2), (e). The Veteran has reported that entitlement to service connection for PTSD was granted in a 1979 or 1980 rating decision. The Board's decisions prior to 1983 are not indexed but listed by a "control number" on the front page of the decision. It may be possible to locate earlier decisions if the Veteran could provide additional detail regarding the prior decisions. The Veteran's representative has been the same since at least 1992, and it is not clear whether that organization retains any relevant records for the period prior to 1991. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the dates of the prior decisions for which he is claiming CUE. Ask him and his representative to provide reasons why they think there was CUE in these decisions. 2. Ask the Veteran to provide copies of any VA (including Board) decisions in his possession and pertaining to the period prior to 1991. 3. The Veteran should also be asked to provide with as much specificity as possible, the dates of any Board decisions made with regard to his claims prior to 1991, the issues considered in those decisions and any index numbers. 4. Ask the Veteran's representative, whether it has copies of any RO or Board decisions, claims or other relevant evidence pertaining to the Veteran's claims prior to 1991; and whether it would like to submit such evidence to VA. Request the Veteran's claims folder and any documents pertaining to the Veteran, to include service treatment and personnel records, from the NPRC, Department of the Army, JSRRC, and any other appropriate repository. Efforts to obtain these records must continue until they are obtained, unless it is reasonably certain that the records do not exist or that further efforts would be futile. The Veteran should be informed of any records that cannot be obtained, of the efforts made to obtain the records, and of any additional efforts that will be made with regard to his claim. 5. The agency of original jurisdiction (AOJ) should adjudicate the issue of CUE in prior rating decisions. The Board will further consider this issue only if the Veteran submits a timely notice of disagreement, and after issuance of a statement of the case, submits a sufficient substantive appeal. 6. The AOJ should adjudicate the issues of entitlement to service connection for TBA and OBI. The Board will further consider this issue only if the Veteran submits a timely notice of disagreement, and after issuance of a statement of the case, submits a sufficient substantive appeal. 7. The AOJ should readjudicate entitlement to an earlier effective date for service connection for PTSD. The AOJ should consider Rudd v. Nicholson, 20 Vet App 296 (2006) and its holding that there are no free standing claims for an earlier effective date. 8. If any issue for which an appeal has been perfected remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if otherwise in order. The Veteran and his representative have 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). _________________________________________________ Mark D. Hindin 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).