Citation Nr: 1334022 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-00 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an effective date prior to January 5, 1971, for the grant of service connection for the psychiatric manifestations of a traumatic brain injury (TBI). 2. Entitlement to an effective date prior to October 23, 2008, for the grant of service connection for chronic brain syndrome due to trauma. 3. Entitlement to an effective date prior to October 23, 2008, for the grant of service connection for tension headaches. 4. Entitlement to an effective date prior to November 12, 2009, for the grant of service connection for vertigo. 5. Entitlement to an effective date prior to October 23, 2008, for the grant of a total disability rating based on individual unemployability (TDIU). 6. Entitlement to an effective date prior to October 23, 2008, for the grant of basic eligibility for Dependents' Educational Assistance. 7. Entitlement to a disability rating in excess of 50 percent for PTSD prior to November 2, 2010. 8. Whether there is clear and unmistakable error (CUE) in a May 26, 2010, rating decision's assignment of effective dates for separate ratings for chronic brain syndrome due to trauma, tension headaches, and vertigo. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and M.J.J. ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in pertinent part, continued the 50 percent evaluation of the Veteran's post-traumatic stress disorder (PTSD), granted service connection for chronic brain syndrome due to trauma with an initial 40 percent evaluation effective October 23, 2008, granted service connection for post-traumatic tension headaches with an initial 10 percent evaluation effective October 23, 2008, granted service connection for vertigo with an initial 10 percent evaluation effective November 12, 2009, granted entitlement to a total disability rating based on individual unemployability (TDIU) effective October 23, 2008, and granted basic eligibility for Dependents' Educational Assistance. While the May 2010 rating decision also granted service connection for partial anosmia and assigned a noncompensable rating for this disability, the Veteran did not object to the January 2012 SOC's failure to mention this issue in his Form 9 or at the time of his hearing before the Board in July 2013. Thus, the Board finds that this issue is not a subject for further appellate review. In a January 2012 rating decision, the RO increased the evaluation of the Veteran's PTSD from 50 percent to 100 percent effective November 2, 2010. The issue of a disability rating in excess of 50 percent for PTSD remains on appeal as to the period prior to November 2, 2010, because the increased rating does not represent the highest possible benefit for this period. AB v. Brown, 6 Vet. App. 35 (1993). In July 2013, the Veteran presented testimony before the undersigned, and a transcript of this hearing has been associated with the record. As will be discussed in further detail below, the issues of clear and unmistakable error (CUE) in April 1973, June 1973, and December 1996 rating decisions have been raised by the record, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran generally contends that the symptoms associated with his TBI have continued since 1971, and he is thus entitled to an earlier effective for the grant of service connection for all of the symptoms associated with his TBI. Upon analysis of the claims file, however, the Board finds that the Veteran has raised not only claims of entitlement to earlier effective dates, but also claims of CUE with respect to several past rating decisions. A March 1973 Board decision granted service connection for a nervous disorder. An April 1973 rating decision then granted the Veteran a 30 percent disability rating under Diagnostic Code 9304 effective January 6, 1971. A June 15, 1973 rating decision confirmed the April 1973 rating decision and indicated that the Veteran would be more appropriately rated under Diagnostic Code 9400. An August 1977 rating decision continued the 30 percent evaluation under Diagnostic Code 9304. A December 1996 rating decision increased the Veteran's disability rating from 30 percent to 50 percent effective July 19, 1996, and it changed the applicable Diagnostic Code from 9304 to 9304-9411. A January 1998 rating decision continued the 50 percent disability rating and changed the applicable Diagnostic Code from 9304-9411 to 9404-9411. In July 2009, the Veteran filed a claim for service connection for a TBI; the Veteran noted that he was rated at 50 percent for his PTSD but was not otherwise in receipt of ratings addressing his TBI symptoms. In a May 2010 rating decision, the RO continued the existing 50 percent evaluation of the Veteran's PTSD under Diagnostic Code 9411. In addition, the RO granted: a) service connection for chronic brain syndrome due to trauma with an initial 40 percent evaluation under Diagnostic Code 8045 effective October 23, 2008; b) service connection for post-traumatic tension headaches with an initial 10 percent evaluation under Diagnostic Code 8045-8100 effective October 23, 2008; c) service connection for vertigo with an initial 10 percent evaluation under Diagnostic Code 6204 effective November 12, 2009, d) entitlement to a TDIU effective October 23, 2008, and e) basic eligibility for Dependents' Educational Assistance effective October 23, 2008. The Board notes that previous determinations are final and binding in the absence of CUE. When the evidence establishes such error, the prior decision will be reversed or amended. A decision that constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105 (West 2002). In August 2010, the Veteran submitted a timely notice of disagreement (NOD) as to the May 2010 rating decision, generally alleging that he was entitled to earlier effective date for the separate ratings for a chronic brain syndrome, post-traumatic tension headaches, and vertigo. The Veteran's August 2010 NOD also alleged that the June 1973 rating decision, which confirmed the April 1973 rating decision, constituted CUE because it failed to fully rate the all of the symptomatology associated with his TBI. Furthermore, the Veteran's August 2010 NOD alleged that the December 1996 rating decision constituted CUE because it "added" the ratings associated with the Veteran's headaches to his PTSD rating for a combined 50 percent rating, rather than separately evaluating each of the symptoms associated with the Veteran's claimed TBI. In January 2012, the RO issued a supplemental statement of the case (SSOC) stating parenthetically that CUE had not been demonstrated in any rating decision prior to May 2010. In July 2013, the Veteran effectively stated that the April 1973 rating decision effectuating the Board's March 1973 decision constituted CUE because it did not separately rate the Veteran's psychological symptoms from the other symptoms associated with his TBI. Turning to an evaluation of these facts, the Board notes that the Veteran has not been provided with notice regarding how to substantiate a claim on the basis of CUE. Furthermore, although the RO's January 2012 SSOC stated parenthetically that CUE had not been demonstrated in any rating decision prior to May 2010, the Board finds that this parenthetical statement does not constitute a full and fair adjudication of the issues of CUE that the Veteran has raised. Accordingly, the issues of whether the April 1973, June 1973, or December 1996 rating decisions should be revised or reversed on the basis of CUE must be adjudicated on remand. Furthermore, when a claimant has filed a timely NOD and the RO has not issued an SOC, the issue must be remanded to the RO for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). In his August 2010 NOD, the Veteran timely disagreed with the May 2010 rating decision granting a TDIU and basic eligibility for Dependents' Educational Assistance, effective October 23, 2008. The Veteran additionally disagreed with the 50 percent disability evaluation of his PTSD. 38 C.F.R. §§ 20.201, 20.302 (2013). As noted above, a January 2012 rating decision increased the evaluation of the Veteran's PTSD to 100 percent effective November 2, 2010. A SOC has not been issued addressing either the October 23, 2008, effective date for a TDIU, the October 23, 2008, effective date for basic eligibility for Dependents' Educational Assistance, or entitlement to a disability rating in excess of 50 percent for PTSD prior to November 2, 2010. Therefore, the Board must remand the claims to the AOJ so that an SOC may be issued with respect to these matters. As a final note, the issues of CUE in the April 1973, June 1973, and December 1996 rating decisions are inextricably intertwined with both the earlier effective date issues and the CUE issue with respect to the May 2010 rating decision. The CUE claims as to the April 1973, June 1973, and December 1996 rating decisions must be decided in the first instance by the RO before the Board reaches a final determination on either the earlier effective date issues or the issue of CUE with respect to the May 2010 rating decision. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Provide the Veteran with notice on how to substantiate a claim on the basis of CUE. 2. Then, the RO should adjudicate the issues of whether the April 1973, June 1973, or December 1996 rating decisions should be revised or reversed on the basis of CUE. If the determination is adverse to the Veteran, the Veteran and his representative must be provided with written notice of the determination and of the Veteran's appellate rights. If the Veteran appeals any of these decisions, the RO should issue a SOC addressing the issue of CUE. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO should advise the Veteran that the issue will not be reviewed by the Board unless he perfects his appeal following the issuance of the SOC. 3. After completing the above actions, the RO should readjudicate the earlier effective date claims and claim of CUE with respect to the May 2010 rating decision, considering the outcome of the adjudication of the CUE claims addressed in the second directive. If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 4. Then, issue a SOC on the issues of entitlement to an effective date prior to October 23, 2008, for a TDIU and eligibility for Dependents' Educational Assistance, and entitlement to a disability rating in excess of 50 percent for PTSD prior to November 2, 2010. Provide the Veteran with appropriate notice of his appellate rights, and the Veteran should be given an opportunity to perfect an appeal. This matter should be returned to the Board only if an appeal is perfected. The Veteran has the right to submit additional evidence and argument on the matters that 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 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 2002 & Supp. 2013). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).