Citation Nr: 1513246	
Decision Date: 03/27/15    Archive Date: 04/03/15

DOCKET NO.  13-04 994	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Whether there was clear and unmistakable error in an April 1996 rating decision that denied service connection for pulmonary pathology characterized as pneumonia and lung abscesses.

2.  Entitlement to an effective date earlier than October 7, 2010, for the grant of service connection for chronic obstructive pulmonary disease (COPD).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

P. Olsen, Counsel


INTRODUCTION

The Veteran had active military service from November 1985 to May 1995.

This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

In September 2013, the Veteran testified at a Travel Board hearing.  A transcript of that hearing is of record.

In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's electronic ("Virtual VA" and Veterans Benefit Management System (VBMS)) file, as well as the evidence in his physical claims file.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The issue of whether clear and unmistakable error (CUE) exists in an April 1996 decision of the RO which denied entitlement to service connection for pneumonia and lung abscess was raised during the September 2013 Travel Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  That issue is, however, intertwined with the certified issue of an earlier effective date.  If error was found, it would impact the finality of the April 1996 rating action, and could affect any decision made herein on the effective date.  Thus, it is the Veteran's advantage to have both issues reviewed initially by the RO prior to entry of a decision by the Board.

Accordingly, the case is REMANDED for the following action:

1. Review the issue of whether there was clear and unmistakable error in the April 1996 rating action that denied service connection for respiratory pathology.  As part of the review, appropriate notice should be provided to the appellant and his representative.

2. Adjudicate as appropriate the issues on the title page.  To the extent the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond thereto.  The matter should then be returned to the Board for further review, if in order.

The Board intimates no opinion as to the outcome in this case by the action taken herein.

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 D. LYON 
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).