Citation Nr: 21004353 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-59 438 DATE: January 26, 2021 REMANDED Entitlement to an effective date earlier than July 21, 2015, for the assignment of a 20 percent evaluation for a painful/unstable scar from appendectomy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1990 to May 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. At her January 2021 hearing, the Veteran asserted that she either perfected an appeal of a July 2007 rating decision that confirmed and continued a noncompensable rating or alternatively alleged there was clear and unmistakable error (CUE) in the assignment of the effective date of 20 percent rating for her painful/unstable scar from her appendectomy because the 20 percent rating should have been granted in the July 2007 rating decision. In November 2007, the Veteran filed a Notice of Disagreement (NOD) with the July 2007 rating decision and the RO issued her a Statement of the Case (SOC) in September 2008. It does not appear, however, that the Veteran filed a timely Substantive Appeal following the September 2008 SOC. The Veteran asserts that she filed a claim around 2007 and as a result, the effective date for the increased rating should be earlier than July 21, 2015, because her symptoms today, as reflected by the current 20 percent rating, are similar to those in 2007. The Veteran’s CUE claim is inextricably intertwined with the claim of entitlement to an earlier effective date for the assignment of a 20 percent rating for her scars because finality presumes the absence of CUE, i.e., if a prior adjudication contains CUE, it did not become final. The Board is unable to consider the Veteran’s CUE argument in the first instance. As a result, remand is appropriate for the RO to adjudicate, in the first instance, her motion for revision on the basis of CUE. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc); Huston v. Principi, 18 Vet. App. 395, 402-03 (2004). The matters are REMANDED for the following action: Adjudicate the Veteran’s allegation of clear and unmistakable error in the July 2007 rating decision for failing to assign a 20 percent rating and effective date of July 21, 2015, for the Veteran’s service-connected painful/unstable scar from an appendectomy. (Continued on the next page)   If these claim remains denied, reconsider the Veteran’s claims of an earlier effective date for the award of 20 percent for a painful/unstable scar from an appendectomy on the merits. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.Ijitimehin, Associate Counsel 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.