Citation Nr: 1533318 Decision Date: 08/05/15 Archive Date: 08/11/15 DOCKET NO. 12-14 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Whether there was clear and unmistakable error (CUE) in an August 2004 rating decision that established an effective date of January 24, 2001, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), based on the distinct CUE challenge that VA committed error by failing to consider and apply 38 C.F.R. § 4.16(b) for the purpose of determining if an extra-schedular TDIU was warranted prior to January 24, 2001. (The issue of whether there was CUE in a May 10, 2013, decision by the Board that dismissed the moving party's motion alleging CUE in an August 2004 rating decision is the subject of a separate decision.) REPRESENTATION Appellant represented by: James M. McElfresh II, Agent WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The Veteran served on active duty from December 1950 to February 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In that decision, the RO addressed the merits of the distinct CUE allegation that VA had failed to consider and apply 38 C.F.R. § 4.16(b) (2004) for an extra-schedular TDIU, and determined that the August 2004 rating decision did not contain CUE in awarding a TDIU rating effective from January 24, 2001. The Veteran filed a Notice of Disagreement (NOD) with this RO decision in December 2011. The RO furnished the Veteran a Statement of the Case (SOC) in May 2012, and the Veteran filed a Substantive Appeal (VA Form 9) later that month. Upon review, the Board observes that the Veteran has alleged different bases of CUE in the established effective date of January 24, 2001, for the TDIU grant in the August 2004 rating decision. See Andre v. Principi, 301 F.3d 1354, 1362 (Fed. Cir. 2002); see also Andrews v. Nicholson, 421 F.3d 1278, 1284 (Fed. Cir. 2005). As such, the Board further observes that there remain two separate and distinct motions of CUE, upon which the Veteran seeks to challenge the January 24, 2001, effective date assigned for the TDIU grant. As previously identified above, the first of the remaining CUE challenges is the subject of the current appeal. The second of the remaining CUE challenges to the August 2004 rating decision has yet to be formally adjudicated at the Agency of Original Jurisdiction (AOJ) level, and was initially raised by the Veteran, through his then-counsel, in a July 2010 brief to the United States Court of Appeals for Veterans Claims (Court). Specifically, the Veteran has alleged CUE in the assigned January 24, 2001, effective date for the TDIU grant, by arguing that an earlier 1998 TDIU claim remains open and pending and thus was not an abandoned claim. In the April 2011 Memorandum Decision, the Court ruled that this alternative "pending-claim" argument was a "new" theory of CUE in the August 2004 rating decision that was not raised through (then) counsel to the RO and the Board. As a consequence, the Court ruled that the Board, in the first instance, was not required to address, and that the Court lacked jurisdiction to consider, this new argument of CUE. As discussed in the February 2014 Appellee's Motion to Remand, which was granted by the Court in a March 2014 Order, this new motion of CUE, based on the "pending-claim" argument, was to be initially adjudicated on the merits by the AOJ and then by the Board, as needed. The Board notes that the separate and distinct theory of CUE, involving the "pending-claim" argument based on the "incorrect zip code" theory, has not been formally adjudicated by the AOJ. Because it appears that this "new" CUE theory may have been confused with prior, adjudicated theories; and because this "new" CUE theory is inextricably intertwined with the "4.16(b)-theory" of CUE that is currently on appeal before the Board, a remand is necessary to ensure that the Veteran's right to due process is preserved and to ensure that each of these distinct CUE challenges of the August 2004 rating decision is properly adjudicated by VA. As an aside, the Board further observes that an entirely different CUE theory was the subject of the Board's December 2009 decision and was affirmed by the Court in an April 2011 Memorandum Decision. That theory of CUE, as raised by the Veteran, was that an effective date of January 28, 1993, should have been assigned for the TDIU grant, based on the argument that the Veteran had filed an earlier TDIU claim that had not been adjudicated, based on the Veteran's challenge that the RO, in the August 2004 rating decision, had failed to properly apply 38 C.F.R. § 3.400(o)(1) and, had it done so, he would have been assigned an effective date for his TDIU rating that dated back to 1993. This distinct CUE motion was initially denied by the RO in an April 2009 rating decision. On appeal, it was denied by the Board in a December 2009 decision, and the Board's decision was affirmed in the April 2011 Memorandum Decision by the Court. (The Veteran appealed the Court's memorandum decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit), but that appeal was dismissed in an October 2011 Order because the Veteran had failed to file a timely brief). Hence, the Court's affirmance of the December 2009 Board decision remains undisturbed. In May 2012, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the Salt Lake City RO. A transcript of this hearing was prepared and associated with the claims file. In December 2012, the Veteran testified at a personal hearing before a Veterans Law Judge (VLJ). In October 2014, the Board's Principal Deputy Vice Chairman granted the Veteran's motion to recuse the VLJ who had conducted the December 2012 hearing from further participation in his case. The recusal ruling offered the Veteran the opportunity to testify at a new hearing. He declined this offer in a correspondence that was received by the Board in November 2014. The Veteran's case has been reassigned to the undersigned Veterans Law Judge. The Board notes that, during the course of the Veteran's appeal, his claims file has been converted into an electronic record in Virtual VA and the Veterans Benefits Management System (VBMS), with the vast majority of these documents appearing in the latter. The Veteran's claims file is extraordinarily large, and its enormity led to technical difficulties in VBMS that rendered the records themselves unviewable for several months. As a result, this case was placed into abeyance until the underlying technical defects in VBMS could be corrected. As soon as those repairs were made, the case was removed from abeyance and every document in the record (including all of the Veteran's written correspondence) was thoroughly reviewed, and the case has been promptly adjudicated. The case is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran has perfected an appeal on the discrete of issue of whether there was CUE in the August 2004 rating decision that established an effective date of January 24, 2001, for the award of a TDIU, based on the distinct CUE challenge that VA had failed to apply 38 C.F.R. § 4.16(b) to determine whether an extra-schedular TDIU was warranted. Specifically, the Veteran alleges that VA committed error in the August 2004 rating decision by failing to refer for consideration by the Director of Compensation and Pension a claim for an extra-schedular TDIU. He argues, in essence, that the August 2004 rating decision is the product of CUE because VA failed to consider and grant entitlement to an extra-schedular TDIU under 38 C.F.R. § 4.16(b), prior to January 24, 2001. Alternatively, the Veteran has also raised the discrete issue of whether there was CUE in the August 2004 rating decision that established an effective date of January 24, 2001, for the award of a TDIU, based on the distinct CUE challenge that an earlier 1998 TDIU claim remains open and pending and thus was not an abandoned claim. Specifically, the Veteran alleges that VA committed error in the August 2004 rating decision by erroneously determining that the Veteran failed to prosecute, and thus had abandoned, a TDIU claim filed in 1998. He argues, in essence, that he filed a claim for TDIU in January 1998, the status of which remained open and pending, and thus was not an abandoned claim, because the AOJ failed to mail a February 1998 VA form to his latest of address of record (i.e., specifically arguing an "incorrect zip code" in the mailing address). As noted in the Introduction, above, this distinct "pending-claim" challenge of the August 2004 rating decision was ruled by the Court to be a "new" theory of CUE, as discussed in the April 2011 Memorandum Decision and the February 2014 Appellee's Motion to Remand, but has not been formally addressed by the AOJ. Because a finding of CUE, based on the "pending-claim" theory, could materially affect the outcome of the "4.16(b)-motion" of CUE, the Board finds that these two separate and distinct CUE motions are inextricably intertwined, as the adjudication of both motions potentially involves a determination that addresses the proper date of receipt of the claim for TDIU. Hence, the Board must defer consideration on the "4.16(b)-theory" of CUE, until such time as the AOJ completes the necessary adjudication of the issue concerning whether there was CUE in the August 2004 rating decision that established an effective date of January 24, 2001, for the grant of a TDIU, based on the "pending-claim" argument based on the "incorrect zip code" theory (i.e., whether VA committed error in determining that the Veteran failed to prosecute, and thus had abandoned, a TDIU claim filed in 1998). See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ must adjudicate the issue of whether there is CUE in the August 2004 rating decision that established an effective date of January 24, 2001, for the award of a TDIU, based on the distinct CUE challenge that VA committed error in determining that the Veteran failed to prosecute, and thus had abandoned, a January 1998 TDIU claim (i.e., the "pending-claim" argument based on the "incorrect zip code" theory). This CUE theory is distinct from those that have already been adjudicated by VA and must be the subject of its own separate adjudication. The Veteran must be notified that, if this distinct CUE determination is unfavorable, he must file a timely notice of disagreement and, following the issuance of a statement of the case, he must file a timely substantive appeal (VA Form 9) in order to perfect an appeal of this distinct CUE issue. 2. Following completion of the above, the AOJ should re-adjudicate the issue of whether there is CUE in the August 2004 rating decision that established an effective date of January 24, 2001, for the award of a TDIU, based on the distinct CUE challenge that VA committed error by failing to consider and apply the provisions of 38 C.F.R. § 4.16(b) for the purpose of determining if an extra-schedular TDIU was warranted prior to January 24, 2001. If the determination remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case 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). _________________________________________________ DEBORAH W. SINGLETON 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).