Citation Nr: 20008182
Decision Date: 01/30/20	Archive Date: 01/30/20

DOCKET NO. 16-35 453A
DATE: January 30, 2020

REMANDED

The issue of whether the rating decision in October 2012 was clearly and unmistakably erroneous (CUE) in failing to grant a permanent and total rating for service-connected prostate cancer is remanded.

REASONS FOR REMAND

The Veteran had active duty service from October 1969 to October 1971.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans’ Appeals (VA) Regional Office (RO), which, in pertinent part, found that no revision was warranted in not granting eligibility to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in June 2019.  A copy of the transcript has been reviewed and associated with the claims file. 

Whether the rating decision in October 2012 was clearly and unmistakably erroneous (CUE) in failing to grant a permanent and total rating for service-connected prostate cancer is remanded.

In the present case, the RO issued an October 2012 rating decision, which, in relevant part, increased the rating of the Veteran’s prostate cancer to 100 percent and required a future VA examination following the cessation of therapeutic procedures.  The Veteran subsequently filed a CUE claim in June 2013 and indicated that the rating decision was clearly and unmistakably erroneous by failing to address the issue of whether the Veteran’s prostate cancer was permanent and total.  The Veteran also raised the issue of entitlement to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35.  

The RO subsequently issued a Statement of the Case (SOC) in July 2016 and adjudicated the issue of whether the rating decision in October 2012 was clearly and unmistakable erroneous by failing to grant eligibility to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35.  

After a review of the evidence, the Board finds that a remand is necessary in order for the RO to issue a revised Statement of the Case (SOC), which addresses the issue of whether there was a CUE in the October 2012 rating decision.  In this regard, the July 2016 SOC addresses the issue of whether a CUE was made in the October 2012 rating decision by failing to grant educational benefits.  However, this issue was not adjudicated in the October 2012 rating decision, but rather, the issue of an increased rating for prostate cancer was adjudicated.   While the two questions are inter-related from a benefits standpoint, the Board only has jurisdiction over the rating assignment itself, as that was the subject matter of the challenged October 2012 decision.

Accordingly, the Board finds that a remand is necessary in order for an appropriate SOC to be issued.  

The matter is REMANDED for the following action:

Issue an SOC addressing the issue of whether a clear and unmistakable error (CUE) was made in the October 2012 rating decision, which increased the rating for the Veteran’s service-connected prostate cancer to 100 percent and required future VA examinations.  Thereafter, return the case to the Board for adjudication if the benefits on appeal are not granted in full.  

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. (Hurley) Merrick

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.