Citation Nr: 1307475 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 08-19 915A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than September 26, 2007, for the grant of service connection for traumatic brain injury. REPRESENTATION Appellant represented by: Chris Attig, Attorney at Law ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appellant served on active duty from February 1980 to February 1984. This case initially came before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO granted entitlement to service connection for residuals of traumatic brain injury and assigned a 10 percent rating, effective September 26, 2007. The appellant timely appealed the effective date of the grant of service connection. In January 2012, the Board denied the appellant's claim for an earlier effective date for the grant of service connection for traumatic brain injury. In that same decision, the Board denied entitlement to service connection for diabetes and obstructive sleep apnea. In July 2012, counsel for the appellant and VA filed with the United States Court of Appeals for Veterans Claims a Partial Joint Motion to vacate and remand the Board decision as to the earlier effective date claim. The parties to the Joint Motion, noting that the January 2012 Board decision also denied service connection for diabetes and obstructive sleep apnea, wrote, "Appellant no longer wishes to pursue these issues and these issues should be considered abandoned." Partial Joint Motion, at 1. In July 2012, the Court granted the motion and vacated and remanded to the Board that part of the Board's decision that denied entitlement to an effective date earlier than September 26, 2007, for the grant of service connection for traumatic brain injury. The Court also dismissed the appeal as to the remaining issues. In his December 2012 response to the Board's 90 day letter, the appellant's attorney requests a remand based on the fact that he "has located medical records from the Salt Lake City VA Medical Center," which are attached to the letter. The appellant's attorney appears to request remand of the claims for service connection for diabetes and obstructive sleep apnea. On page 1 of his letter, he "respectfully requests that the substantive portions of (the appellant's) claim for service connection of various medical conditions underlying the January 2012 BVA decision be remanded to the VA Regional Office due to the VA's failure in the duty to assist." On Page 2 of the letter, he requests remand of the Board's decision denying service connection for the appellant's sleep apnea condition. The Board notes that, prior to the December 2012 submission, there were records from the Salt Lake City, VA Medical Center in the claims file. For the following reasons, the Board will not vacate its January 2012 denials of entitlement to service connection for diabetes and chronic obstructive sleep apnea. The January 2012 Board decision was final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100(a) (2012). Although the appellant appealed to the Court, the parties to the Partial Joint Motion, one of whom was the appellant's attorney, specifically indicated that these issues should be considered abandoned and the Court therefore dismissed the appeal as to these issues. In the absence of an appeal, the January 2012 Board decision remained final. The appellant's attorney did not acknowledge this abandonment and dismissal in his December 2012 response; nor did he indicate why the records submitted warranted vacating the Board's final January 2012 decision. While the Board may vacate an appellate decision at any time upon request of the claimant or his representative, or on the Board's own motion, when a claimant has been denied due process of law, 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904(a) (2012), there has been no such showing at this time. The Board will therefore not further address the abandoned and dismissed issues of entitlement to service connection for diabetes and obstructive sleep apnea. The Board notes that the appellant did not abandon or withdraw claims related to sleep disorders other than obstructive sleep apnea including, but not limited to, service connection for central sleep apnea, complex sleep apnea, sleep apnea as a residual of traumatic brain injury, post-concussional sleep apnea, or sleep apnea of complicated etiology, as indicated by the parties to the Joint Motion. As those claims are not on appeal, however, they will also not be addressed herein. The claim of entitlement to an earlier effective date for the grant of service connection for traumatic brain injury is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The parties to the Joint Motion indicated that remand is warranted because the RO erred by not including the Veteran's records from the South Texas Veterans Health Care system dated between June 23, 2006 and January 14, 2011, in the claims file. Although the RO indicated that it had reviewed the records electronically, these records are in neither the physical nor Virtual VA claims file. As the parties to the Partial Joint Motion agreed that remand is required for the RO to associate these records with the appellant's claims file, the Board is required to remand the claim to the RO to comply with this instruction. Accordingly, the claim of entitlement to an earlier effective date for the grant of service connection for traumatic brain injury is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Associate the records from the South Texas Veteran's Health Care System for the period from June 23, 2006 through January 14, 2011 with the claims file. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter that 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). _________________________________________________ DEREK R. BROWN 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) (2012).