Citation Nr: 1803980 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-09 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date prior to January 12, 2012, for the assignment of a separate 10 percent rating for a scar of the right anterior breast. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Mays, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from February 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) (Atlanta) in Decatur, Georgia. Subsequent to the rating decision, jurisdiction was transferred to the RO in Winston-Salem, North Carolina. A video conference hearing on this matter was held before the undersigned Veterans Law Judge in May 2017. During this hearing in May 2017, the Veteran clarified that he was raising the issue of whether VA committed clear and unmistakable error (CUE), when in rating decisions entered in April 1970, April 1971, and June 1979, it failed to award a separate compensable rating for a scar of the right anterior breast. The Veteran stated: "[W]hen I was discharged and upon first examination by the Veterans' Administration, there was no, no entitlement to the damage and loss of my right breast." See May 2017 Videoconference Hearing, page 12. Notably, the Veteran in his VA Form 9, appears to be raising a CUE claim, when construed in the light most favorable to the Veteran. See Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to address all issues raised either by the claimant or by evidence of record). Given such, this issue is referred to the RO for appropriate action. The Veteran submitted a Notice of Disagreement (NOD) with respect to the September 2017 rating decision that denied a rating in excess of 10 percent for the scar of the right anterior breast. Thus far, the Veteran has not been furnished a statement of the case addressing this matter. See e.g. 38 C.F.R. §19.29. However, it appears clear that the agency of original jurisdiction (AOJ) is aware of the NOD and is continuing to work on the appeal. Therefore, it will not be remanded at this time. Cf. Manilicon v. West, 12 Vet. App. 238 (1999). The matter currently developed for appeal is REMANDED. VA will notify the appellant if further action is required. REMAND Generally, the effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). However, as explained in the Introduction, it appears that the Veteran has raised a CUE claim that has not been formally adjudicated by the RO. Because the claim of CUE, if granted, could have an effect on his claim for an earlier effective date, the issue of CUE needs to be considered prior to final appellate action on the effective date issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Take adjudicatory action on the claim raised by the Veteran that the RO committed CUE when it failed to award a separate compensable rating for a scar of the right anterior breast. After a decision is entered on those issues, notify the Veteran of the outcome. If the decision is adverse to the Veteran, he must be notified of his right to appeal. The issue should be certified to the Board for review if, and only if, a timely notice of disagreement is received and, after a statement of the case has been issued, the Veteran perfects the appeal by filing a timely substantive appeal. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. 2. Thereafter, take adjudicatory action on the issue of the Veteran's entitlement to an effective date prior to January 12, 2012, for the award of a separate 10 percent rating for a scar of the right breast. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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).