Citation Nr: 1803806	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  11-26 681A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to an effective date prior to April 19, 2007, for service connection for pes cavus, bilateral foot deformity and metatarsalgia, to include the presence of clear and unmistakable error (CUE) in a rating action dated in March 1998.

ATTORNEY FOR THE BOARD

P. Daugherty, Associate Counsel


INTRODUCTION

The Veteran served in the Army National Guard with active duty from October 1989 to March 1990, in the United States Marine Corps from October 1990 to December 1990, and in the United States Air Force from January 2009 to April 2010. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted the Veteran service connection for pes cavus, bilateral foot deformity and metatarsalgia, with an effective date of April 19, 2007.  The Veteran has appealed the issue of entitlement to an earlier effective date for the grant of service connection. 
 
The Board notes that an additional claim involving a claim of CUE with respect to a March 1998 RO decision's denial of service connection for pes cavus, bilateral foot deformity and metatarsalgia has been raised by the record.  See, October 2011 VA Substantive Appeal.  Accordingly, since the Board has determined that the CUE claim is inextricably intertwined with the issue of entitlement to an earlier effective date for the grant of service connection for pes cavus, bilateral foot deformity and metatarsalgia, all of these issues will be remanded to the RO for additional adjudication of the CUE claim, as explained in further detail below.  Harris v. Derwsinki, 1 Vet. App. 180 (1991). 

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


REMAND

While the Board sincerely regrets further delay, additional development is required before the Veteran's claims may be adjudicated on the merits. 

As stated previously, the Board notes that the issue of CUE was raised by the Veteran in his October 2011 VA Substantive Appeal, in which he asserts that the March 1998 rating decision which originally denied service connection for pes cavus, bilateral foot deformity and metatarsalgia is incorrect as he should have been service connected for this disability at that time and thereby entitled to Veteran's status at an earlier point in time.  However, as the Veteran's appeal now includes a claim of CUE that has not yet been adjudicated, the issue of entitlement to an earlier effective date for grant of service connetion for pes cavus, bilateral foot deformity and metatarsalgia must be held in abeyance pending the completion of the requested adjudication.  

Accordingly, the case is REMANDED for the following action:

Adjudicate the issue of whether the March 1998 rating decision contained clear and unmistakable error (CUE) in its failure to service connection the Veteran's pes cavus, bilateral foot deformity and metatarsalgia.  If any benefit sought on appeal is not granted, furnish the Veteran a supplemental statement of the case, afford him a reasonable opportunity to respond, and then return the case to the Board for further appellate review, if otherwise 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 J. Skaltsounis
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) (2017).