Citation Nr: 1309920 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-28 700 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to an effective date earlier than January 31, 2008, for the award of service connection for lumbar strain with degenerative changes, to include on the basis of clear and unmistakable error (CUE). REPRESENTATION The Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to March 1975. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO granted service connection for lumbar spine strain with degenerative changes and assigned an initial 10 percent rating effective January 31, 2008. In June 2009 the Veteran filed a notice of disagreement (NOD) with the assigned effective date. A statement of the case (SOC) was issued in May 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2010. In June 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The claim on appeal-characterized to include the matter of CUE, as explained below-is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. Historically, the the RO, inter alia, denied service connection for lumbar spine strain with degenerative changes in an unappealed March 1976 rating decision that was mailed to the Veteran in April 1976. Thereafter, the Veteran reopened his claim for service connection for lumbar spine strain with degenerative changes in January 2008. In the March 2009 rating decision on appeal, the RO granted service connection for lumbar spine strain with degenerative changes, an effective date of January 31, 2008. Generally, the effective date for an award of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). The effective date for an award of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q) (1)(ii), (r). As mentioned above, the RO originally denied service connection for lumbar spine strain with degenerative changes in a March 1976 rating decision. Although notified of the denial, the Veteran did not appeal the decision. Accordingly, unless an exception to finality applies, the decision became final (and, hence, provides no basis for assignment of any subsequently granted claim for service connection). See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. However, the Board notes that if there was CUE in the March 1976 decision, the decision would not be final, and the award of service connection could be made effective from an earlier date. See 38 C.F.R. § 3.105(a). During the June 2012 Board hearing, the Veteran asserted, inter alia, that the RO committed CUE in failing to award service connection in March 1976. In support of his assertion that the reviewing officer did not consider his post-service treatment for his back. He specifically testified that he was in an in-service car accident while he was stationed in Germany and was on medication for his back since the accident. He also testified that as soon as he was discharged from the military he started seeing a chiropractor for his back. The RO has not explicitly considered the matter of CUE in the RO's March 1976 rating decision. However, given the above noted discussion-and because a determination on the matter of CUE could impact a determination as to the Veteran's entitlement to an earlier effective date for the awards of service connection lumbar spine strain with degenerative changes-on these facts, the matter of CUE is, essentially, a component of the earlier effective date claim. The RO should consider the expanded claim-in particular, the matter of CUE in the March 1976 rating decision as a basis for an award of an earlier effective date-in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). While this matter is on remand, to ensure that all due process requirements are met, and that the record is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of this claim should include consideration of all evidence added to the record since the RO's last adjudication of the claim. Accordingly, the matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the claim in light of all pertinent evidence and legal authority. Consider any evidence which was constructively before the RO in March 1976 pertaining to lumbar spine strain with degenerative changes and in light of all pertinent legal authority then in effect. In adjudicating the claim for an earlier effective date, explicitly address whether the RO committed CUE in the March 1976 rating decision in failing to grant service connection for lumbar spine strain with degenerative changes. 4. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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).