Citation Nr: 21066521
Decision Date: 11/01/21	Archive Date: 11/01/21

DOCKET NO. 18-03 420
DATE: November 1, 2021

REMANDED

The claim of entitlement to an effective date earlier than May 24, 2016, for the grant of entitlement to service connection for thoracic spine degenerative disc disease, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 2004 to October 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). 

In April 2021, the Veteran testified in a hearing before the Board.  A transcript of the hearing is included in the electronic claims file and has been reviewed.

In June 2021, the Board remanded this matter because the issue on appeal was intertwined with an asserted claim.  

During the Board hearing, the Veteran claimed that the RO committed clear and unmistakable error (CUE) in a June 2012 rating decision denying the original claim of entitlement to service connection for a back disorder filed in June 2011.  Inasmuch as a decision regarding the CUE claim could impact the Board's decision regarding the appropriate effective date here, the Board suspended its decision until the RO responded to the CUE claim.

The RO responded in an August 2021 supplemental statement of the case (SSOC).  The RO found no CUE in the June 2012 rating decision but addressed the CUE claim within the context of the earlier effective date claim on appeal.  

Another remand is warranted.  

A claimant's assertion of CUE in a prior rating decision is a distinct claim.            See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  A claim of CUE should be decided in a rating decision with full notification to the claimant rather than in a SSOC.  See 38 U.S.C. § 7105 (a); 38 C.F.R. § 19.31(a).  

The matter is REMANDED for the following action:

Adjudicate, in a formal rating decision, whether the June 2012 rating decision that denied service connection for a back disorder should be reversed and revised on the grounds of CUE.  Thereafter, provide to the Veteran and his representative written notice of the determination with notice of the right of appeal.  Then, once the motion for CUE has been finally decided, return the claim on appeal to the Board, if warranted.

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Christopher McEntee

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.