Citation Nr: 1414561 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 11-04 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date prior to October 21, 2009, for the grant of service connection for bronchitis, to include whether there was clear and unmistakable error (CUE) in April 1990, December 2002 and May 2006 rating decisions that denied service connection for asthmatic bronchitis. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970 and from June 1971 to July 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran provided testimony before the undersigned Veterans Law Judge via videoconference in January 2012. A transcript of that hearing has been associated with the claims file. The Veteran executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in October 1996, and appointed the Oklahoma Department of Veterans Affairs as his representative. In January 2012, the Veteran revoked this representation and has not appointed a new representative since that time. 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. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's earlier effective date claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran's initial claim for service connection, which was received by VA on August 1989. Though not specifically claimed, service connection for asthmatic bronchitis was denied in an April 1990 rating decision. In February 2000, VA received the Veteran's request to reopen his claim for service connection for bronchitis and an October 2001 rating decision denied the claim as no new and material evidence was submitted. In October 2002, the Veteran submitted a new request to reopen his claim for service connection for bronchitis. A December 2002 rating decision again denied the claim as no new and material evidence was submitted. The Veteran submitted another request in April 2006 and a May 2006 decision letter explained to the Veteran the claim was denied again for lack of new and material evidence. Finally, in October 2009, the Veteran submitted a new claim to reopen the issue of entitlement to service connection for bronchitis. In an August 2010 rating decision, the RO granted the Veteran's claim and assigned a 10 percent rating, effective October 21, 2009 - the date of the most recent claim to reopen. The Veteran is seeking an effective date prior to October 21, 2009, for the grant of service connection for bronchitis. The Veteran believes that the effective date should be from 1990, when he initially filed a claim for service connection. The Veteran stated at the Board hearing that the RO erroneously identified asthma as pre-existing service and it was not aggravated during service, thus, leading to denials throughout the years. However, the Veteran asserted that he never alleged asthma, and was never treated for, or diagnosed with, asthma. His claim was for entitlement to service connection for bronchitis, not asthma. As such, the Veteran alleged there was CUE in the April 1990, December 2002, and May 2006 rating decisions. The Board finds that a remand is required because the Veteran initially alleged CUE in prior rating decisions at his January 2012 hearing before the undersigned and, as such, it must be adjudicated by the agency of original jurisdiction (AOJ) in the first instance. Furthermore, a remand is required because the CUE claim is inextricably intertwined with the claim for an earlier effective date. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). In that regard, a finding of CUE in the April 1990, December 2002, and May 2006 rating decisions could potentially render the Veteran's current claim for an earlier effective date moot. Accordingly, the case is REMANDED for the following action: 1. Develop and adjudicate the Veteran's claim of CUE in the April 1990, December 2002, and May 2006 rating decisions that denied service connection for asthmatic bronchitis, as alleged by the Veteran at his January 2012 hearing before the undersigned. He should be afforded notice as to the definition of CUE. In this regard, the Veteran has claimed CUE in that the RO erroneously adjudicated his claim as asthmatic bronchitis pre-existing service, when he alleges he has never been treated for, or diagnosed with, asthma. If the claim is denied, he should be afforded notice thereof and be provided his appellate rights. If a notice of disagreement is filed, a statement of the case should be issued. This matter should be returned to the Board only if an appeal is perfected. 2. Then, the RO/AMC should readjudicate the issue of entitlement to an effective date prior to October 21, 2009, for the grant of service connection for bronchitis. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 3. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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. 2013). _________________________________________________ BARBARA B. COPELAND 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).