Citation Nr: 1328049 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-31 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date prior to March 30, 2004, for the award of service connection for a right elbow disability. REPRESENTATION Appellant represented by: Tara R. Goffney, Attorney at Law ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1953 to June 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for the right elbow disability and assigned a 10 percent evaluation for that disability, effective March 30, 2004. The Veteran timely appealed the assigned effective date. In March 2011, the Board denied an earlier effective date. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2013 Order, the Court granted a joint motion for remand, vacating the March 2011 Board decision and remanding the appeal. The case has been returned to the Board at this time in compliance with that Court order. 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 appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND As an initial matter, the joint motion instructed the Board to "more fully discuss whether certain communications from [the] Appellant could reasonably construed as a claim for CUE [clear and unmistakable error] as to the 1955 Board decision, and if so, whether the claim remains pending and un-adjudicated." The Board specifically found in the Introduction that motions for CUE had not been raised by the record due to a lack of specificity. Nevertheless, in order to comply with the Joint Motion for Remand, the Board notes that it does not appear that the Board has received a motion for CUE with its prior November 1955 Board decision at this time. If the Veteran wishes to file a CUE motion with the Board, the procedure for doing so was discussed in the March 2011 Board decision's Introduction. In addition, the Veteran is represented by a private attorney who will be able to assist the Veteran with the proper filing procedure should this be the course of action he is seeking to take. The Board further notes that if the Veteran was claiming CUE with respect to the noted August 1984, October 1985 or August 2002 rating decisions, then the appropriate claim should be filed with RO so that the RO may take the appropriate actions. The Veteran and his representative are again reminded that motions for CUE in a Board decision and claims for CUE in a rating decision must be pled with specificity, including raising particularized allegations of error in specific prior final decisions. Generic or generalized allegations of error are not sufficient. With regards to the other portion of the Joint Motion for Remand, the Board was instructed to "ensure that VA has obtained all of the Appellant's service treatment records." In order to facilitate such, the Board finds that a remand of this case is necessary at this time. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Attempt to obtain through official sources any of the Veteran's service treatment and personnel records that are not currently associated with the claims file. If any further records cannot be obtained and further attempts would be futile, such should be noted in the claims file with a memorandum of unavailability and the Veteran should be notified. 2. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim for an earlier effective date for the award of service connection for a right elbow disability. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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). _________________________________________________ JAMES L. MARCH 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).