Citation Nr: 1338909 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-26 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person (A&A). 3. Whether a July 2002 rating decision should be revised on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from December 1952 to March 1959. This appeal to the Board of Veterans' Appeals (Board) arose from July 2010 and July 2011 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The July 2010 rating decision denied entitlement to a TDIU rating and to SMC based on A&A. The Veteran initiated an appeal by filing a notice of disagreement (NOD) in July 2010. By letter of July 13, 2011, the Veteran was notified that a July 2011 rating decision determined that there was no clear and unmistakable error (CUE) in a July 2001 (actually July 2002) rating decision (which denied service connection for residuals of a fracture of the first lumbar vertebra (L1) with stenosis and degenerative disc disease (DDD). The Veteran filed an NOD as to this July 2011 decision later that month. After a September 2011 statement of the case (SOC) was issued, the appeal was perfected from the July 2010 rating decision (denying a TDIU rating and SMC based on A&A) by filing a VA Form 21-4138, Statement in Support of Claim, in lieu of VA Form 9 (Appeal to the Board of Veterans' Appeals), later in September 2011. In the September 2011 VA Form 21-4138, it was requested that these claims (for a TDIU rating and SMC based on A&A) be adjudicated "in conjunction" with his pending NOD as to the July 2011 rating decision finding no CUE in a July 2002 rating decision (which denied service connection for residuals of a fracture of L1 with stenosis and DDD). In June 2013, an SOC was issued as to the appeal of the July 2011 rating decision (finding no CUE in the July 2002 rating decision). Thereafter, that appeal was perfected when VA Form 9, Appeal to the Board of Veterans' Appeals, was received in July 2913. In October 2013, a Deputy Vice Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For reasons expressed below, the matters on appeal are being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. REMAND Pursuant to 38 C.F.R. § 20.700(a) (2012), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. Also, a veteran is entitled to a hearing before a Veterans Law Judge, either in person, or via video conference in lieu of an in-person hearing, if he so chooses. 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700 (2012). In the Veteran's July 2013 VA Form 9 (perfecting the appeal from the July 2011 rating decision finding no CUE in a July 2001 (actually July 2002) rating decision, he requested a hearing before a Veterans Law Judge at a local RO (a Travel Board hearing). Hence, a remand of the CUE claim for the requested Board hearing is required. The Board also points out that, as the adjudication of the CUE claim could impact upon the claims for a TDIU and for SMC based on A&A, and the CUE claim will not be addressed by the Board until after the hearing, adjudication of remaining two claims would be premature, at this juncture. Hence, these matters are being remanded, as well. Accordingly, these matters are hereby REMANDED for the following action: Schedule the Veteran for a hearing before a Veterans Law Judge at RO, with appropriate notice to him and his representative. After the hearing, return the claims file to the Board in accordance with current appellate procedures. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).