Citation Nr: 1316720 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-31 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for a neurogenic bowel 2. Entitlement to a compensable disability rating for a residuals of shell fragment wound, left wrist scar. 3. Entitlement to an effective date prior to September 9, 2009, for the assignment of a 40 percent rating for traumatic brain injury (TBI), to include as due to clear and unmistakable error (CUE) in various prior rating decisions. 4. Entitlement to an effective date prior to October 18, 2006, for the assignment of a noncompensable rating for erectile dysfunction (ED), to include on the basis that the denial of such in a September 2002 rating decision constituted CUE. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from May 1967 to May 1970, with service in the Republic of Vietnam for which he was awarded a Purple Heart and a Combat Infantryman Badge. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2009 and April 2010 rating decisions by the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). In his August 2011 substantive appeal, the Veteran requested a Central Office hearing before a member of the Board; however, in a March 2013 statement made through his representative, the Veteran withdrew his request for such a hearing and requested that his appeal proceed with the evidence already of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The entitlement to an effective date prior to September 9, 2009, for the assignment of a 40 percent rating for traumatic brain injury (TBI), to include as due to clear and unmistakable error (CUE) in various prior rating decisions is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service-connected neurogenic bowel is productive of symptoms of moderate leakage and occasional involuntary bowel movements. 2. The Veteran's residuals of shell fragment wounds, left wrist scar, is not objectively shown to be painful or unstable or deep and nonlinear and at least 6 square inches but less than 12 square inches or superficial and nonlinear and an area or areas of 144 square inches or greater 3. The September 2002 rating decision denying entitlement to service connection for ED is final. 4. The Veteran has not identified an error of fact or law in the September 2002 rating decision denying entitlement to service connection for ED that compels a conclusion, to which reasonable minds could not differ, that the results would have been manifestly different had the error not been made. 5. The Veteran's claim to reopen a claim of entitlement to service connection for ED was received by VA on October 18, 2006, more than one year following his separation from active service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for a neurogenic bowel have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7332. 2. The criteria for a compensable disability rating for residuals of a shell fragment wound, left wrist scar, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.118, Diagnostic Codes 7801, 7802, 7804 (2012). 3. Clear and unmistakable error is not shown in the September 2002 rating decision, in which the RO denied entitlement to service connection for ED. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2012). 4. The criteria for an effective date earlier than October 18, 2006, for service-connected ED have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Here, the VCAA duty to notify was satisfied by way of a letters sent to the Veteran in December 2006, January 2009, September 2009, and December 2009, that fully addressed all notice elements and were sent prior to the initial RO decision in these matters. These letter informed the Veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence. These letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained pertinent VA treatment records and has afforded the Veteran with appropriate VA medical examinations. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria and Analysis General Disability Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Neurogenic Bowel A review of the record shows that the Veteran was granted service connection for a neurogenic bowel as secondary to his service-connected disability of arachnoid cyst of the spinal cord. The RO determined that the Veteran's symptoms were most closely related to Diagnostic Code 7332, which pertains to rectum and anus, impairment of sphincter control. Under Diagnostic Code 7332, a noncompensable rating is assigned for healed or slight impairment of sphincter control, without leakage; a 10 percent rating is assigned for mild impairment of sphincter control, with constant slight, or occasional moderate leakage; a 30 percent rating is assigned for occasional involuntary bowel movement, necessitating wearing of pad; a 60 percent rating is assigned for extensive leakage and fairly frequent involuntary bowel movements; and a 100 percent rating is assigned for complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332. The Veteran is currently in receipt of a 30 percent disability rating for his service-connected neurogenic bowel. He contends that his symptoms warrant a higher rating. The Veteran was afforded a VA examination in September 2008. At that time he reported a history of bowel impairment. He denied any history of fecal incontinence. He reported frequent constipation which requires the use of medication. On physical examination, the examiner noted that there was evidence of bowel impairment, but there was no evidence of leakage. The status of the sphincter was found to be normal. The Veteran was afforded another VA examination in January 2009. At that time he reported that he had been experiencing intermittent problems with his bowels since a spinal cord injury in 1969. He reported that the problems had been exacerbated by surgeries on an arachnoid cyst on his spine in 1977 and 1989, but were manageable. However, he reported that in the prior few years, the problems had increased and it was very difficult for him to maintain bowel movements, even with exercise, diet, fiber supplements, and stool softeners. He reported that he had added min-enemas, with some benefit, but that he continued to have constipation alternating with diarrhea after using the min-enemas. He reported that he reported that had not used pads in the past, but that he intended to ask his provider to order pads for him. The Veteran reported current symptoms of diarrhea, difficulty passing stool, and pain. He denied symptoms of anal itching, burning, tenesmus, and swelling. He reported a history of fecal incontinence, severe fecal leakage, and occasional involuntary bowel movement. He reported fecal incontinence occurred 2 to 3 times per week. On physical examination, there were no hemorrhoids, anorectal fistula, anal or rectal stricture, or rectal prolapse present. There were no other physical findings made. The examiner diagnosed neurogenic bowel and noted that this disability had severe effects on the Veteran's daily toileting functions. The Veteran was afforded a VA examination in December 2009 in connection with his claim of service connection for TBI. At that time he reported moderate fecal leakage requiring the use of pads and occasional involuntary bowel movements. He reported that he used every three days as treatment for his bowel impairment. The Veteran was afforded another VA examination in February 2010. At that time he reported a history of bowel impairment and frequent constipation requiring bowel training, enemas, and medication. He denied fecal incontinence. Also of record are outpatient treatment records from the VA Medical center which show the Veteran receives regular treatment for a variety of disabilities. The VA treatment records do not indicate that that symptoms of his neurogenic bowel are more severe than those documented in the VA examinations of record. The Board finds that a disability rating in excess of 30 percent for the Veteran's neurogenic bowel is not warranted. In this regard, the Board notes that the Veteran's neurogenic bowel is manifested by symptoms of frequent constipation and fecal incontinence with moderate leakage and occasional involuntary bowel movements requiring the use of pads. The Board notes that at his January 2009 VA examination, the Veteran reported severe leakage; however, this is inconsistent with his December 2009 VA examination when he reported moderate leakage and his February 2010 examination when he did not report any leakage. Additionally, the VA examination reports and the VA treatment records do not show, nor has the Veteran reported, that he suffers from frequent involuntary bowel movements. Therefore, a higher disability rating for neurogenic bowel is not warranted at this time. 38 C.F.R. § 4.114, Diagnostic Code 7332. Consideration has been given to assigning a disability rating under another diagnostic code. However, there is no evidence that the Veteran has stricture of the rectum and anus, prolapse of the rectum, fistula in ano, or internal or external hemorrhoids. Therefore, a disability rating under another diagnostic code for the Veteran's neurogenic bowel is not warranted. 38 C.F.R. § 4.114, Diagnostic Codes 7333, 7334, 7335, 7336. Consideration has also been given to assigning a staged rating; however, at not time during the period in question has the disability warranted a higher schedular rating. See Fenderson v. West, 12 Vet. App. 119 (1999). Residuals of Shell Fragment Wound, Left Wrist Scar The Board notes that the Veteran's left wrist scar is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7800. However, Diagnostic Code 7800 applies to scars of the head, face, or neck, and therefore the Board finds that the Veteran's residuals of shell fragment wound, left wrist scar, would more appropriately be rated under either Diagnostic Code 7801, 7802, or 7804, all of which apply to scars not of the head, face, or neck. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck that are deep and nonlinear. Such scars in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) are rated 10 percent disabling. Scars in an area or areas of at least12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent disabling. Scars in an area or areas of at least 72 square inches (465 sq. cm.) but lest than 144 square inches (929 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 provides that scars that are superficial and nonlinear, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Code 7804 provides ratings for scars that are unstable or painful. A 10 percent rating shall be assigned for one or two scars that are unstable or painful; a 20 percent rating shall be assigned for three or four scars that are unstable or painful; and a 30 percent rating shall be assigned for five or more scars that are unstable or painful. The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. The Veteran was afforded a VA examination January 2010. At that time reported his left wrist scar was the residual of a shell fragment wound sustained on active service in 1968. He reported the scar was not painful. On physical examination, the left wrist scar was measured to be 0.5 centimeters wide and 1.5 centimeters long. The scar was not painful. There were no signs of skin breakdown. The scar was superficial. There was no inflammation, edema, or keloid formation. There were no other disabling effects noted. The examiner noted that the Veteran's left wrist scar had no effect on the Veteran's usual daily activities. There is no indication from the outpatient VA treatment notes of record that the Veteran receives any treatment for problems with his left wrist scar. The Board finds that the Veteran is not entitled to a compensable disability rating for his residuals of shell fragment wound, left wrist scar. In this regard, the Board notes that there is no objective evidence that the left wrist scar is painful or unstable. Additionally, there is no evidence indicating that the left wrist scar is deep and nonlinear and is at least 6 square inches but less than 12 square inches or that it is superficial and nonlinear and is an area or areas of 144 square inches or greater. Therefore, a compensable disability rating is not warranted at this time. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804. The Board has also considered assigning staged ratings; however, at no time during the period in question have the Veteran's left or right knee disabilities warranted a higher schedular rating. Hart v. Mansfield, 12 Vet. App. 505 (2007). Extra-Schedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record reflect that the manifestations of the Veteran's neurogenic bowel and residuals of shell fragment wound, left wrist scar, are contemplated by the schedular criteria. There is no indication from the evidence of record that the Veteran has frequent hospitalizations or has even received frequent emergency treatment for either of these disabilities. In sum, there is no indication that the average industrial impairment caused by the Veteran's neurogenic bowel and residuals of shell fragment wound, left wrist scar, would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Earlier Effective Date for ED The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2012). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b); 38 C.F.R. § 3.400(b)(2)(i). 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. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2012). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the adjudicator, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The criteria to determine whether CUE was present in a prior determination are that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310 (1992). The Veteran initially filed a claim for ED in August 2001, and was ultimately denied service connection in a September 2002 rating decision on the basis that the evidence of record failed to show he suffered from a sexual dysfunction disability. The Veteran did not appeal that rating decision, nor did he file new and material evidence within one year, and it therefore became final. 38 C.F.R. § 3.156. The Veteran filed a claim to reopen his claim of entitlement to service connection for ED in October 2006. In a June 2007 rating decision, the Veteran was granted service connection for ED and assigned a noncompensable rating effective October 18, 2006, date of claim to reopen. The Veteran asserts that the medical evidence of record at time of the October 2006 rating decision showed he had ED since the time of his August 2001 claim of entitlement to service connection, and as such, the effective date of his entitlement to service connection for ED should be August 16, 2001. While the Board can appreciate why the Veteran believes the award should be effective from that time, under the criteria governing awards of service connection, the effective date of an award of service connection cannot be earlier than the date the Veteran filed his claim. 38 U.S.C.A. § 5110(a). In this case, the Veteran did not appeal the September 2002 rating decision that denied his August 2001 claim of entitlement to service connection for ED, nor did he submit new and material evidence within one year of that decision, and it therefore became final. The Veteran did not file his claim to reopen his claim of entitlement to service connection for ED until October 18, 2006. These facts are not in dispute. Therefore, his claim for an earlier effective date must be denied because it is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Additionally, the Veteran has asserted that he should be awarded an effective date of August 16, 2001, for the grant of service connection for ED as a result of the original September 2002 denial of such being in error. Therefore, the Board will now consider entitlement to an earlier effective date on the basis that the prior denial was clearly erroneous. Careful review of the claims file shows that at the time of the September 2002 rating decision there was a July 2001 letter of record from Dr. C.W. which stated the Veteran suffered from ED related to his spinal cord injuries and that he would need to be on either Viagra or injection erections for the indefinite future. Also of record at the time of the September 2002 rating decision is a June 2002 VA examination report, which documents the Veteran's report that at that time he was able to get normal erections, have normal vaginal intercourse, and only required occasional use of Viagra. In essence, the Veteran's allegation of CUE is based on the RO's failure to provide greater weight to his private physician's opinion in the July 2001 letter, than the Veteran's own statements made at the time of his June 2002 VA examination. A review of the September 2002 rating decision shows that the adjudicator fully considered the statement provided by the Veteran's private physician when weighing the evidence in the decision. The adjudicator merely assigned more probative value to the Veteran's statements made at the June 2002 VA examination. The assignment of probative value is within the discretion of the adjudicator and does not rise to the level of CUE as it is not a circumstance in which reasonable minds could not differ. Therefore, the criteria for a finding of CUE in the September 2002 rating decision have not been met. ORDER Entitlement to a disability rating in excess of 30 percent for a neurogenic bowel is denied. Entitlement to a compensable rating for a residuals of shell fragment wound, left wrist scar, shell fragment wound residual, is denied. Entitlement to an effective date prior to October 18, 2006 for the assignment of a noncompensable rating for ED, to include on the basis that the denial of such in a September 2002 rating decision constituted CUE, is denied. REMAND The Veteran contends that he is entitled to an earlier effective date for the assignment of the 40 percent disability rating for TBI. At the outset, the Board notes that there is no controversy as to whether the Veteran sustained head injuries while on active service. The Veteran's service treatment records document a shell fragment wound to his scalp and the March 1970 report of medical history associated with his separation examination notes his complaints of frequent or severe headaches and a history of head injury. Furthermore, the Veteran has already been granted service connection for TBI. The record indicates that the Veteran initially began complaining of headaches immediately following his separation from active service in 1970. He was ultimately granted service connection for anxiety reaction with headaches and assigned a 10 percent disability rating in a February 1973 rating decision. The Veteran continued to complain of headaches and in an October 1977 claim of entitlement to service connection for a back disability he asserted that his headaches were related to a concussion sustained at the time he injured his back while on active service. The Veteran was granted service connection for his back disability and granted a 30 percent disability rating for his anxiety reaction with headaches, effective December 29, 1978. The Veteran contends that the February 1973 rating decision, which did not grant him a separate and distinct disability rating for his subjective complaints of headaches constituted CUE. Furthermore, in a January 2001 rating decision the Veteran was granted service connection for posttraumatic stress disorder (PTSD) and assigned a 70 percent disability rating. In the rating decision, the RO noted that the Veteran had been granted service connection for anxiety reaction, and was in receipt of a 30 percent disability rating effective December 29, 1978. The RO determined that the diagnosis of PTSD constituted nothing more than a change in the original service-connected diagnosis of anxiety reaction. However, by changing the Veteran's service-connected diagnosis of anxiety reaction with headaches to PTSD, the RO, in effect, severed the Veteran's disability rating for headaches. There is no indication from the record that the RO followed the procedural requirements outlined in 38 C.F.R. § 3.105(d) for severing service connection. The Veteran has argued that the January 2001 rating decision which severed service connection for his headaches constituted CUE. A review of the record shows that VA has not addressed the earlier effective date issue on the basis of CUE. Therefore, the Veteran must be issued a Supplemental Statement of the Case with respect to the earlier effective date issue that specifically addresses his claims of CUE. Accordingly, the case is REMANDED for the following action: The RO or the AMC should readjudicate the Veteran's claim of entitlement to an earlier effective date for service connection for TBI. The RO or the AMC should specifically address this issue on the following bases: (1) That the March 1973 rating decision that did not grant the Veteran a separate disability rating for his subjective complaints of headaches was CUE. (2) That the January 2001 rating decision that severed the Veteran's disability rating for headaches when his diagnosis was changed from anxiety reaction with headaches to PTSD was CUE. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The appellant has 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). ______________________________________________ M.W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs