Citation Nr: 1622214 Decision Date: 06/02/16 Archive Date: 06/13/16 DOCKET NO. 11-06 061 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether partial vacatur of an October 21, 2015, Board of Veterans' Appeals decision is warranted insofar as it implicitly denied a claim of entitlement to an increased rating for Meniere's syndrome prior to September 24, 2010. 2. Entitlement to an increased rating for Meniere's syndrome prior to September 24, 2010, currently evaluated as 60 percent disabling. 3. Entitlement to an earlier effective date than September 26, 2007 for the grant of entitlement to service connection for Meniere's syndrome, including on the basis of alleged Clear and Unmistakable Error (CUE) in a June 1972 RO rating decision that denied service connection for a nervous stomach (now claimed as Meniere's syndrome). 4. Entitlement to service connection for chronic migraines, to include as secondary to service-connected Meniere's syndrome. 5. Whether a timely notice of disagreement was filed with respect to the issue of entitlement to a higher initial rating for Meniere's syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to March 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, denying an earlier effective date for service connection for Meniere's syndrome, to include upon averred basis of CUE within prior RO adjudication of the underlying original claim. A June 2012 hearing was held at the Board's Central Office in Washington, D.C., before the undersigned Veterans Law Judge regarding the issue of entitlement to an earlier effective date for the grant of service connection for Meniere's syndrome. The Board issued a July 2013 decision/remand denying the claim for earlier effective date, and remanding for initial issuance of statement of the case both claims for increased rating for Meniere's syndrome and service connection for hepatitis. The appeal as to the issue of entitlement to service connection for hepatitis was not perfected and is therefore no longer before the Board. The Veteran appealed the Board's decision regarding denial of an earlier effective date to the U.S. Court of Appeals for Veterans Claims (Court). In May 2015, the Court remanded this case to the Board for further proceedings. In October 2015, the Board remanded the earlier effective date claim for further development and the claim of entitlement to service connection for chronic headaches for issuance of a statement of the case. The Board also implicitly denied a claim of entitlement to an increased rating for Meniere's syndrome prior to September 24, 2010 by finding that the full benefits sought had been granted. The Veteran has since contested that determination and that issue is the subject of the partial vacatur below. The remainder of the October 2015 document, to the extent remand for additional development was indicated remains unaffected by this action. In addition, as described in further detail below, the Board finds that the Veteran has initiated an appeal as to whether a timely notice of disagreement was filed with respect to the issue of entitlement to a higher initial rating for Meniere's syndrome. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. The issues of entitlement to an increased rating for Meniere's syndrome prior to September 24, 2010, entitlement to an earlier effective date for the grant of service connection for Meniere's syndrome, entitlement to service connection for chronic migraines, and whether a timely notice of disagreement was filed with respect to the issue of entitlement to a higher initial rating for Meniere's syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On October 21, 2015, the Board issued a decision that, in pertinent part, implicitly denied entitlement to an increased rating for Meniere's syndrome prior to September 24, 2010, by concluding that a full grant of benefits had been awarded. 2. The Board's action improperly denied the Veteran an opportunity to seek a higher rating prior to September 24, 2010, thus depriving him of due process. CONCLUSION OF LAW To the extent that the October 21, 2015 Board decision implicitly denied entitlement to an increased rating for Meniere's syndrome prior to September 24, 2010, that decision is vacated. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Partial Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). In this case, in the October 2015 remand, the Board noted in the Introduction section that because an August 2015 rating decision granted a 100 evaluation for Meniere's syndrome retroactive to a September 24, 2010 date of claim, the full benefits sought had been granted. Accordingly, the Board determined that that issue was no longer on appeal. In a November 2015 correspondence, the Veteran essentially argued that he was denied due process because the date of the increased rating was the date of claim and since VA regulations allow for a higher rating prior to that date if the increase took place less than one year before the claim, the Board should have reviewed the issue to determine whether a higher rating prior to the date of claim was warranted. See 38 C.F.R. § 3.400(o)(2) (2015) (providing that where an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred should be the effective date of the increased rating). Due to these errors, that part of the October 2015 Board remand reflects a denial of due process. 38 C.F.R. § 20.904. Accordingly, that part of the October 2015 Board remand that implicitly denied a claim of entitlement to an increased rating for Meniere's syndrome prior to September 24, 2010 is vacated. Id. ORDER That part of the October 21, 2015 Board decision implicitly denying entitlement to an increased rating for Meniere's syndrome prior to September 24, 2010, is vacated. REMAND As to the issue of entitlement to an increased rating for Meniere's syndrome, as noted above, in July 2013, the Board remanded the claim for issuance of a statement of the case. This was accomplished in August 2013 and in October 2013, the Veteran timely perfected the appeal. While the issue was again adjudicated in the August 2015 rating decision, that decision treated the award as a full grant of benefits. A supplemental statement of the case addressing why entitlement to an increased rating prior to September 24, 2010 was not warranted has not yet been issued. See 38 C.F.R. § 19.31(c) (providing that a supplemental statement of the case be issued pursuant to a remand by the Board). As to the issue of entitlement to service connection for chronic migraines, in October 2015, the Board remanded the claim for issuance of a statement of the case. This was accomplished in December 2015 and in January 2016, the Veteran timely perfected the appeal. In the substantive appeal he argued, however, that the December 2015 statement of the case failed to consider an October 2015 private medical opinion the Veteran had submitted in November 2015. The Board's review of the December 2015 statement of the case indeed reveals that this evidence was not considered. As such, this issue must be remanded for initial review by the AOJ. See 38 C.F.R. § 19.37 (2015). As to the issue of whether a timely notice of disagreement was filed with respect to entitlement to a higher initial rating for Meniere's syndrome, in the November 2015 correspondence, the Veteran argued that he timely appealed the initial evaluation of an August 2009 rating decision granting entitlement to service for Meniere's syndrome. Specifically, he contends that the September 24, 2010 correspondence, which a February 2012 rating decision treated as a new claim for an increased rating, was in fact a notice of disagreement as to the August 2009 rating decision, notice of which was mailed in September 2009. In this regard, in an October 2012 correspondence, the Veteran disagreed with the February 2012 rating decision determination that the September 2010 correspondence was a new claim. The Board finds that the October 2012 correspondence can reasonably be considered an expression of dissatisfaction with the February 2012 determination and can be liberally construed as a notice of disagreement. See 38 C.F.R. § 20.201 (2014). Hence, a statement of the case must be issued. Manlincon, 12 Vet. App. at 240-241. As to the issue of entitlement to an earlier effective date for the grant of entitlement to service connection for Meniere's syndrome, including on the basis of alleged CUE, because the Veteran will be afforded an opportunity to submit additional evidence and argument regarding Meniere's syndrome, some of which may potentially relate to the issue of entitlement to an earlier effective date, the Board finds a decision on this issue should be deferred. Finally, the Board observes that the Veteran has requested a Central Office hearing in connection with his claims of entitlement to service connection for chronic migraines and entitlement to an increased rating for Meniere's syndrome. After returning the appeal to the Board, appropriate procedures for scheduling such a hearing should be undertaken. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran a statement of the case addressing whether a timely notice of disagreement was filed with respect to the issue of entitlement to a higher initial rating for Meniere's syndrome. Only if the Veteran or his representative submits a timely Substantive Appeal addressing this issue should it be returned to the Board for appellate review. 2. The AOJ should then readjudicate the issues of entitlement to an earlier effective date for the grant of service connection for Meniere's syndrome, including on the theory of averred CUE; entitlement to service connection for chronic migraines; and entitlement to an increased rating for Meniere's syndrome prior to September 24, 2010, based upon all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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) (2015).