Citation Nr: 1400279 Decision Date: 01/06/14 Archive Date: 01/23/14 DOCKET NO. 09-29 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a rating decision issued in August 1972 that denied service connection for a chest condition, characterized as a paratracheal mass of undetermined etiology. 2. Entitlement to service connection for asthma, claimed as secondary to the service-connected granulatomatous mass. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Dr. CB ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from July 1957 to July 1961 and from September 1961 to January 1968. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that granted service connection for an old granulomatous disease and assigned an initial noncompensable rating effective from August 11, 2004. The Veteran disagreed with the assigned disability rating and perfected an appeal as to that issue. The Board issued a decision in February 2012 that denied the Veteran's appeal for compensable rating for the service-connected disability, and the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2013 the Court issued a Memorandum Decision that affirmed the Board's denial of a compensable rating for the service-connected disability on appeal. However, the Court found that the Veteran had raised two issues that were not addressed by the Board: a claim of CUE in a rating decision in August 1972; and, a claim of entitlement to service connection for asthma as secondary to the service-connected disability on appeal. 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 on his part. This appeal has been advanced 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) (2013). REMAND As noted in the Introduction, the Court affirmed the only issue over which the Board had jurisdiction (i.e., increased initial rating for old granulomatous disease), but found the Board had not appropriately addressed reasonably raised but unadjudicated issues. Specifically, the Court noted that a claim of CUE had been reasonably raised but not addressed. The Board notes that the Veteran's attorney before the Court argued in his brief to the Court that the Veteran claimed CUE in an August 1972 rating decision that denied service connection for a paratracheal mass (claimed as a chest condition). Because the Agency of Original Jurisdiction (AOJ) has not made an initial determination in regard to that CUE claim, such matter must be addressed by the AOJ in the first instance. The Board notes that in April 1973, a Board decision affirmed the denial of service connection for a paratracheal mass. Although the Board is remanding this issue in light of the Court's finding that the CUE issue had been raised, the Veteran is on notice that the unappealed August 1972 rating decision was likely subsumed by the April 1973 Board decision that likewise denied the claim. See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). To date, the Veteran has not filed with the Board a motion for revision of the April 1973 Board decision based on CUE. The Court also found the Veteran had raised a claim for service connection for asthma as related to tuberculosis and the paratracheal mass, now characterized as granulomatous disease. As a claim for service connection for asthma has not been adjudicated by the AOJ, action on such claim must be taken by the AOJ in the first instance. As neither claim has been adjudicated by the AOJ, the Board does not have jurisdiction over those claims. Thus, following adjudication of the claims in the first instance, the claims should not be returned to the Board unless a timely notice of disagreement and timely substantive appeal are filed following the AOJ determination(s). See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.300, 20.302. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the claim of CUE in the August 1972 rating decision that denied service connection for a paratracheal mass, claimed as a chest condition. Advise the Veteran and his representative (if any) of the decision and provide appropriate appellate rights. This issue should not be returned to the Board unless a timely notice of disagreement and timely substantive appeal are filed. 2. After conducting appropriate development, adjudicate the claim of entitlement to service connection for asthma, to include as secondary to service connected old granulomatous. Advise the Veteran and his representative (if any) of the decision and provide appropriate appellate rights. This issue should not be returned to the Board unless a timely notice of disagreement and timely substantive appeal are filed. By this remand, the Board intimates no opinion as to any final outcome warranted. 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. 2013). _________________________________________________ K. A. BANFIELD 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).