Citation Nr: 1336806	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  11-03 794	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1.  Entitlement to an effective date prior to December 12, 2003, for an award of special monthly compensation based on loss of use of the left foot. 

2.  Whether clear and unmistakable error was involved in April 1972 and January 1973 rating decisions which effectively denied special monthly compensation based on loss of use of the left foot. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel


INTRODUCTION

The Veteran served on active duty from March 1970 to March 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted special monthly compensation based on loss of use of the left foot, effective, December 12, 2003.  The Veteran disagreed with the effective date of the award.  A Board hearing was conducted in April 2011.  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

At the April 2011 Board hearing, the Veteran and his representative advanced the argument that the effective date for the award of special monthly compensation based on loss of use of the left foot should go back to the early 1970's when the Veteran filed his original claim of service connection.  They argue that the condition of the foot now is the same as it was then.  Implicit in this argument is a claim of clear and unmistakable error (CUE) in April 1972 and January 1973 rating decisions which established service connection and assigned a disability rating. 

Under the facts of this case, it is arguable that the effective date issue and the clear and unmistakable error issue are intertwined to some degree since both are avenues of obtaining an earlier effective date for the special monthly compensation.  Under the particular circumstances of this case, the Board believes additional action is necessary at the RO level before the Board may proceed with informed appellate review. 

Accordingly, the case is REMANDED for the following actions:

1.  The RO should take appropriate action to ensure that all VA medical records documenting treatment for the left foot in 2002 and 2003 are associated with the claims file.  This is for the purpose of determining whether it was factually ascertainable that an increase in left foot impairment had occurred during the one year period prior to December 2003. 

2.  The RO should then take appropriate action to develop and adjudicate the issue of whether clear and unmistakable error was involved in April 1972 and January 1973 rating decisions which effectively denied special monthly compensation based on loss of use of the left foot.  

The Veteran and his representative should be furnished notice of the RO's determination on the CUE claim and the need to file a timely notice of disagreement if they wish to initiate an appeal from that determination.  

3.  After completion of the above, the RO should review the file and readjudicate the issue of entitlement to an effective date prior to December 2003 for the award of special monthly compensation based on loss of use of the left foot.  The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review. 

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).



_________________________________________________
ALAN S. PEEVY	
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).