Citation Nr: 1334743 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 95-08 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date earlier than August 6, 1987 for the grant of service connection and a compensable rating for a residual scar of a gunshot wound of the left elbow. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. He received the Purple Heart Medal and Combat Infantryman Badge. This matter initially came before the Board of Veterans' Appeals (Board) from a December 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In that decision, the RO granted service connection for a residual scar of a gunshot wound of the left elbow and assigned an initial 10 percent disability rating, effective September 15, 1993. In July 2000, the Veteran testified at a hearing before a local hearing officer at the RO and a transcript of that hearing has been associated with the record. In March 2001, the Board remanded this matter to schedule the Veteran for a Board hearing before a Veterans Law Judge. The Veteran testified before a Veterans Law Judge at a December 2001 hearing at the RO (Travel Board hearing). A transcript of the hearing has been associated with the record. In May 2003, the Board sent the Veteran a letter informing him that the Veterans Law Judge who had conducted the December 2001 hearing was no longer employed at the Board and asked him to indicate whether he wanted to attend a new hearing. The Veteran responded that he did not wish to have another hearing. In July 2003 and June 2007, the Board remanded this matter for further development. In August 2010, the Board granted an effective date of August 6, 1987 for the grant of service connection and a compensable rating for a residual scar of a gunshot wound of the left elbow. The Board's decision was implemented in a September 2010 rating decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2012 memorandum decision, the Court set aside the Board's August 2010 decision and remanded the case for readjudication in compliance with directives specified in the Court's decision. In May 2013, the Board remanded this matter for further development. This appeal was processed using the Veteran's Benefits Management System (VBMS) and the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND In its May 2013 remand, the Board instructed the agency of original jurisdiction (AOJ) to adjudicate the Veteran's claim of clear and unmistakable error (CUE) in a December 1970 rating decision that granted service connection for residuals of a gunshot wound to the left elbow with traumatic arthritis, but did not grant a separate compensable rating for an associated scar. The Appeals Management Center subsequently adjudicated the Veteran's CUE claim in a June 2013 rating decision and this decision is included among the Veteran's paperless records in the Virtual VA system. However, there is no indication that either the Veteran or his representative were notified of this decision and this decision is not referenced in the most recent supplemental statement of the case (SSOC) dated in June 2013. An October 2013 statement from the Veteran's representative reflects that the representative is indeed unaware of the June 2013 decision in that the representative stated that the Board had remanded the issue on appeal for adjudication of the Veteran's CUE claim, but that the "only new decision of record [was] the June 2013 SSOC which denie[d] any early effective date." Thus, a remand is necessary to provide the Veteran and his representative with notice of the June 2013 rating decision and to allow them an opportunity to respond to that decision. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a copy of the June 2013 rating decision which addressed the Veteran's claim of CUE in a December 1970 rating decision that granted service connection for residuals of a gunshot wound to the left elbow with traumatic arthritis, but did not grant a separate compensable rating for an associated scar. The Veteran shall be provided an adequate opportunity to respond to this decision. All such notification must be documented in the record. 2. If any benefit for which a sufficient substantive appeal has been submitted remains denied and additional relevant evidence is received, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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 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). _________________________________________________ THOMAS J. DANNAHER 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) (2013).