Citation Nr: 1317976 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-22 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than September 21, 2009, for the grant of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Esq. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. Additional documents pertinent to this appeal in Virtual VA have been printed and associated with the physical claims file. Procedural History In a May 2003 rating decision, the RO granted service connection for type II diabetes mellitus (rated 20 percent); peripheral neuropathy of the right lower extremity (rated 10 percent); peripheral neuropathy of the left lower extremity (rated 10 percent); peripheral neuropathy of the right upper extremity (rated 10 percent); peripheral neuropathy of the left upper extremity (rated 10 percent); diabetic retinopathy (rated 0 percent); and erectile dysfunction (rated 0 percent). The May 2003 rating decision did not discuss or adjudicate any issue of entitlement to SMC under § 1114(s), as the Veteran had never filed a claim for such. In an April 2004 submission, the Veteran's representative argued that SMC under § 1114(s) should have been considered in the May 2003 rating decision based upon the service-connected ratings that were awarded in that decision. Thereafter, in a September 2006 rating decision, the RO denied the issue of entitlement to SMC under § 1114(s). A notice of disagreement was received in August 2007; a statement of the case (SOC) was issued in February 2008; and a substantive appeal was received in April 2008. Meanwhile, in a December 2007 rating decision, the RO determined that there was no clear and unmistakable error (CUE) in its May 2003 rating decision when it failed to adjudicate the issue of SMC under § 1114(s). A submission construed as a notice of disagreement was received in December 2008; an SOC was issued in March 2009; and a submission construed as a substantive appeal was received in May 2009. In August 2010, the Board issued a decision determining that there was no CUE in the RO's May 2003 rating decision when the RO failed to adjudicate the issue of SMC under § 1114(s); and remanded the claim for SMC under § 1114(s) to the RO for additional development. Thereafter, in March 2012, the Board issued a decision granting entitlement to SMC under § 1114(s), effective September 21, 2009. The RO implemented this award in a May 2012 rating decision. In August 2012, the United States Court of Appeals for Veterans Claims (Court) issued a memorandum decision which vacated and reversed the Board's August 2010 decision with regard to the CUE issue. The Court noted that this CUE issue never had any merit because the RO's May 2003 rating decision was never final in light of the April 2004 submission from the Veteran's representative (which the Court construed as a notice of disagreement to the May 2003 rating decision). The Court remanded the issue of entitlement to SMC under § 1114(s) back to the Board for readjudication consistent with the Court's memorandum decision. The Court asked the Board to consider whether the RO erred by failing to adjudicate SMC under § 1114(s) in its May 2003 rating decision. The Board notes that it appears as if the Court did not have knowledge of the Board's March 2012 decision granting SMC under § 1114(s) prior to its issuance of this August 2012 memorandum decision. The Court is correct in ruling that the CUE issue should never have been on appeal, as the RO's May 2003 rating decision was never final in light of the Veteran's April 2004 notice of disagreement. The current appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND In a February 2013 written statement, the Veteran's representative (on behalf of the Veteran) expressed disagreement with the May 2012 rating decision regarding the effective date assigned for the grant of SMC under 38 U.S.C.A. § 1114(s). The RO has not issued an SOC addressing this issue, as required, and the Board must remand this matter for such action. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that it will have full jurisdiction in this matter only if the Veteran perfects his appeal by filing a timely substantive appeal after the SOC is issued. Accordingly, the case is REMANDED for the following action: Issue an SOC addressing the issue of entitlement to an effective date earlier than September 21, 2009, for the grant of SMC under 38 U.S.C.A. § 1114(s). The Veteran should be afforded the appropriate period of time to file a substantive appeal. This issue is to only be returned to the Board if a timely substantive appeal is filed following issuance of the SOC. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ Alexandra P. Simpson Acting 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).