Citation Nr: 1337314 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 13-20 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether there was clear and unmistakable error in a January 1952 rating decision that reduced the rating for service-connection for bronchial asthma from 30 to 10 percent as of March 21, 1952. 2. Whether there was clear and unmistakable error in a May 1955 rating decision that denied service connection for an ear disorder, Meniere's syndrome. REPRESENTATION Appellant represented by: Andrew J. Waghorn, Attorney ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from November 1940 to November 1945. He was a prisoner of war (POW) of the German government during World War II. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florid. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). 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 Regrettably, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran asserts that there was clear and unmistakable error in January 1952 and May 1955 rating decisions that reduced the rating for service-connection for bronchial asthma from 30 to 10 percent, and denied service connection an ear disorder, Meniere's syndrome. In conjunction with these claims based on clear and unmistakable error it is imperative to note that an individual whose VA claim has been adjudicated by an RO has one year after the issuance of written notification in which to initiate an appeal to the Board by filing a notice of disagreement. If no appeal is filed, the decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. Such a final decision may be reversed or amended where evidence establishes that it was a product of clear and unmistakable error. 38 C.F.R. § 3.105(a). In reviewing the file, the Board notes that regarding clear and unmistakable error in the May 1955 rating decision, the claims folder shows only a May 1955 letter from the RO requesting additional evidence pending a determination on the matter, and not final rating decision. Id. Administrative records show that additional development was pursued including obtaining the Veteran's service records, which were apparently procured and associated with the file in June 1955. The claims folder was then to be referred to a rating Board apparently for further action. Further review of the Veteran's claims folder shows that after June 1955, there is an absence of any records at all, until December 2009. So it appears that there was no final rating decision following the May 1955 RO letter, to include necessary procedures and time limits to initiate an appeal. Most curiously, while a VA administrative record dated in September 1991 references a rebuilt folder, there is no further indication of the whereabouts, if any, of VA records after June 1955 and until 2009. To include the final rating determination on the Veteran's claim for service connection for an ear disorder, Meniere's syndrome, following the RO letter in May 1955. Potentially, the Veteran's service connection claim for an ear disorder, Meniere's syndrome could be pending since that time in the absence of a final rating on the matter. Regarding the Veteran's other claim, clear and unmistakable error for reduction of the rating from 30 to 10 percent for bronchial asthma in January 1952, it is not certain if those records are missing between June 1955 and September 1991, and how they may impact that claim. For instance when the Board affirms a determination of the agency of original jurisdiction, such determination is subsumed by the final appellate decision, and the subsumed rating cannot be challenged on the basis of CUE. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1103, 20.1104. Here, it is not certain but it appears the claims folder has been rebuilt. Additional attempts should be made to determine if this is a rebuilt claims folder and if there are any other records available. The Board finds that, in light of the VA's duty to assist, the significant gap in the appellate record in the Veteran's rebuilt claims file preclude adjudicating the claims until the RO or the AMC provides more information about any attempts to obtain the missing records. Accordingly, the case is REMANDED for the following action: (Please note, 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. Determine if the claims folder is rebuilt, and if so attempt to locate and associate any missing claims folder records from June 1955 to September 1991. Ask the Veteran to provide any evidence in his possession during this period, to include any VA administrative records. 2. If the claims folder was rebuilt and records from June 1955 to September 2009 are unavailable, issue a formal finding of unavailability as to those missing records. 3. Thereafter, the RO should readjudicate the claims. This to include consideration of whether there is a final rating decision for the Veteran's March 1955 claim for service connection for an ear disorder, Meniere's syndrome. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.105(a), 20.302, 20.1103. If any benefit sought is not granted, the Veteran and his attorney should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ JOHN Z. JONES 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).