Citation Nr: 1315405 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 05-35 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an earlier effective date prior to February 7, 2003 for service connection for left knee medial meniscus tear. 2. Entitlement to an earlier effective date prior to March 29, 2004 for service connection for a separate evaluation for neuritis, right lower extremity of the spinal nerve, L4-L5, currently evaluated as 10 percent disabling to include based on clear and unmistakable error (CUE). 3. Entitlement to an earlier effective date prior to March 29, 2004 for service connection for a separate evaluation for neuritis, left lower extremity of the spinal nerve, L4-L5, currently evaluated as 10 percent disabling to include based on CUE. 4. Entitlement to an earlier effective date prior to March 29, 2004 for service connection for a separate evaluation for arthritis of the right knee currently evaluated as 20 percent disabling to include based on CUE. 5. Entitlement to an earlier effective date prior to March 29, 2004 for service connection for a separate evaluation for arthritis of the left knee currently evaluated as 10 percent disabling to include based on CUE. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from March 1986 to July 1989. The appeal comes before the Board of Veterans' Appeals (Board) from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, granting service connection for left knee medial meniscus tear with instability, rated 10 percent, effective from February 7, 2003. The appeal also comes before the Board from a September 2005 Decision Review Officer (DRO) decision granting service connection for right lower extremity neuritis; left lower extremity neuritis; right knee traumatic arthritis; and left knee traumatic arthritis. In March 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge with respect to the issues that were decided in the September 2005 DRO decision. A transcript of the hearing is associated with the claims file. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in which it held that a timely filed substantive appeal is not a jurisdictional bar to Board review, and it is thus within the Board's discretion to waive the issue of timeliness or to decline exercising jurisdiction over the claim. See Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009). Notably, the Veteran did not file a substantive appeal with respect to the issues decided in the September 2005 DRO decision following the August 2008 statement of the case. He may have believed he had done so in the substantive appeal he filed in October 2005 which included issues 2 through4 on the title page of this decision. Additionally, the Veteran has presented testimony regarding these issues at the March 2013 Board hearing. The Board finds that the Veteran may have reasonably believed that in appealing his claim for an earlier effective date for his left knee medial meniscus tear with instability, he had also perfected an appeal as to the remaining claims. Accordingly, the Board finds that there is good cause to waive the issue of timeliness due to what understandably may have been a confusing process. See id. Thus, the requirement that the Veteran file a timely substantive appeal is waived and the Board will exercise jurisdiction over these claims. Id. Finally, at the March 2013 Travel Board hearing, the Veteran and his representative indicated that CUE existed in the September 2005 DRO decision, which assigned the March 29, 2004 date for the Veteran's claims. Specifically, the Veteran's representative contends that VA incorrectly assigned the March 2004 date, as the earlier effective date should be in 1996. As such, a claim of CUE in the September 2005 DRO decision is referred to the RO for appropriate action. Additionally, at the March 2013 hearing, the Veteran's representative also indicated that the Veteran wished to pursue a claim of entitlement to service connection for a disability of the pelvis; as it has not been adjudicated by the Agency of Original Jurisdiction (AOJ), it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND Relevant to the Veteran's claim of an earlier effective date prior to February 7, 2003, for the grant of service connection for left knee medial meniscus tear with instability, on his October 2005 VA Form 9, the Veteran requested a Travel Board hearing. As noted, in March 2013, a Travel Board hearing was held; however, this issue was not heard during the hearing. Considerations of due process mandate that the Board may not proceed with review of such issue on appeal without affording the Veteran an opportunity to attend a Travel Board hearing. Therefore, a remand is required to schedule the appropriate hearing. 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700(a) (2012). Regarding the remaining claims, as noted in the Introduction section above, the Veteran has recently submitted a new claim alleging the existence of CUE in the September 2005 DRO decision that assigned the March 29, 2004 effective dates. The Board finds that this CUE claim is inextricably intertwined with the Veteran's claims of entitlement to an effective date prior to March 29, 2004, for right and left lower extremity neuritis; and right and left knee traumatic arthritis. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on these issues. See Henderson v. West, 12 Vet. App. 11 (1998), for the proposition that where a decision on one issue would have a 'significant impact' upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a Travel Board hearing or a Video Conference hearing with respect to the issue of an earlier effective date prior to February 7, 2003, for the grant of service connection for left knee medial meniscus tear with instability, as per the Veteran's request, in accordance with the procedures set forth at 38 C.F.R. § 20.700(a), 20.704(a) (2012), and as the docket permits. 2. Reajudicate the Veteran's claims of entitlement to an effective date earlier than March 29, 2004, for right and left lower extremity neuritis, and right and left knee traumatic arthritis (after adjudication of the Veteran's referred CUE claim). If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ MARJORIE A. AUER 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).