Citation Nr: 18130331 Decision Date: 08/29/18 Archive Date: 08/29/18 DOCKET NO. 12-30 743 DATE: August 29, 2018 REMANDED Entitlement to an effective date earlier than March 19, 2009 for the award of a compensable rating for a low back disability, to include whether the September 2011 Substantive Appeal was timely, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1970 to September 1974. Entitlement to an effective date earlier than March 19, 2009 for the award of a compensable rating for a low back disability, to include whether the September 2011 Substantive Appeal was timely, is remanded. The additional delay of a final decision is regrettable; however, review of the record reveals that additional development is needed to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). In February 2017, the Board remanded the appeal to have the Agency of Original Jurisdiction (AOJ) adjudicate the issue of whether there was clear and unmistakable error (CUE) in the December 1974 rating decision, which granted service connection for a low back disability and assigned a noncompensable rating from September 1974. The Board indicated that the Veteran’s claim of CUE was inextricably intertwined with the issue of whether his September 2011 Substantive Appeal was timely. Specifically, the Board noted that, if CUE was found in the December 1974 rating decision, which assigned a noncompensable rating for a low back disability, it would have a direct impact on the effective date assigned for the award of a compensable rating for his low back and make moot the question of whether the September 2011 Substantive Appeal was timely. The Board noted that, if the CUE claim was denied, the AOJ had to afford the Veteran the opportunity to perfect an appeal to that issue. The Board directed the AOJ to inform the Veteran and his representative of the denial decision and of the need to perfect a timely appeal if he indeed wanted to appeal the decision. If a notice of disagreement (NOD) were timely filed, the AOJ was to address the matter in a statement of the case (SOC), and afford the Veteran and representative an opportunity to timely file a substantive appeal. The Board concluded that the claims file must not be returned to the Board until the Veteran timely perfected an appeal of the CUE claim, or the period for doing so expired, whichever occurred first. A June 2018 rating decision denied the Veteran’s CUE claim. In the same month, he received notification of this decision. The Veteran submitted a statement in support of his claim in July 2018, noting his dissatisfaction with the rating decision; however, this was not a NOD submitted on the standardized form that was provided by VA for the purpose of appealing an initial decision. The Veteran has one year from the date of the rating decision to submit this form; and as the one-year timeframe from the June 2018 rating decision has not expired (June 2019 expiration date), the Veteran’s claims file should not be returned to the Board until the Veteran timely perfects an appeal of the CUE claim, or the period for doing so expires, whichever occurs first. Stegall v. West, 11 Vet. App. 268, 271. The matter is REMANDED for the following action: 1. As the Veteran’s CUE claim was denied in a June 2018 rating decision, the Veteran has until June 2019 to file a timely NOD, and such time should be allowed. 2. If a NOD is timely filed, the RO should address the CUE matter in a statement of the case (SOC), and afford the Veteran and his representative an opportunity to timely file a substantive appeal. 3. If any benefits sought for which a timely appeal has been perfected remain denied, the Veteran and his representative must be provided with a supplemental statement of the case (SSOC). An appropriate time should be allowed for response. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel