Citation Nr: 1509633 Decision Date: 03/06/15 Archive Date: 03/17/15 DOCKET NO. 07-14 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date earlier than July 9, 1998, for the grant of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Whether a clear and unmistakable error (CUE) occurred in an August 30, 1988 rating decision in failing to grant entitlement to service connection for a nervous condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to May 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2010, the Veteran testified before a Decision Review Officer at the RO. In November 2011, the Veteran testified before the undersigned at the RO. Transcripts of both hearings are of record. The Veteran's earlier effective date claim was remanded by the Board in order to allow the agency of original jurisdiction (AOJ) the opportunity to adjudicate in the first instance the inextricably intertwined issue of CUE in an August 1988 rating decision. The matter again is before the Board. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and Veteran's Benefits Management System (VBMS) systems to ensure review of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he warrants an earlier effective date for the grant of entitlement to service connection for PTSD. The Veteran has multiple theories to support his claim, but of greatest relevance at present is his contention that the symptoms that formed the basis for his current diagnosis of PTSD have been consistent from service and that the effective date for his award should go back to the time of his original treatment for psychiatric problems with the VA in the 1980s. In a January 2015 letter, the Veteran's representative indicated that the effective date should be May 28, 1986, the date that the Veteran was hospitalized at the Chicago VA Medical Center. As noted above, due to the Veteran's contentions during his November 2011 Board hearing the March 2012 Board remand referred to the AOJ for appropriate action the issue of CUE in an August 1988 rating decision. However, rather than promulgating a new rating decision as to this issue, the AOJ adjudicated the CUE claim in the first instance in a June 2014 supplemental statement of the case (SSOC), which also readjudicated the Veteran's inextricably intertwined earlier effective date claim. Notably, the Veteran's representative has since submitted a September 2014 document that indicated the desire to appeal both the earlier effective date claim and CUE claim to the Board. The Board recognizes that, in general, an SSOC serves a different procedural purpose than a rating decision. Nevertheless, the Board finds that, given the particular circumstances of this case, the June 2014 SSOC represents the initial adjudication of the Veteran's CUE claim and, thus, is tantamount to a rating decision as to that issue. Similarly, the Board construes the September 2014 written statement of the Veteran's representative as functionally equivalent to a Notice of Disagreement (NOD) regarding the CUE issue. See 38 C.F.R. § 20.201; see also Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002) (indicating that a NOD need not contain any magic words or phrases). Specifically, the September 2014 statement indicated a desire to appeal the CUE issue to the Board. As a statement of the case (SOC) on that issue has not been issued, the Board will not construe the statement as a substantive appeal, but the clear intent to appeal the decision is evident. As such, an SOC is needed. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); (holding that, where a NOD has been filed and a SOC has not been issued, appropriate Board action is to remand for issuance of a SOC). Moreover, as discussed in the March 2012 Board remand, as the additional development requested above could have a bearing on the earlier effective date claim, this inextricably intertwined issue must again be deferred pending resolution of the CUE claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have a significant impact on the outcome of the other). Accordingly, the case is REMANDED for the following action: 1. Issue an SOC addressing the issue of whether CUE occurred in an August 30, 1988 rating decision in failing to grant entitlement to service connection for a nervous condition. The Veteran should be provided the opportunity to perfect a timely Substantive Appeal (VA Form 9) with respect to this issue. The RO/AMC is free to undertake any additional development deemed necessary with respect to the issue. 2. Once the Veteran has either perfected an appeal on the above issue, or the period in which to do so has expired, readjudicate the claim of entitlement to an effective date earlier than July 9, 1998, for the grant of entitlement to service connection for PTSD, after undertaking any additional development deemed warranted. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an SSOC and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).