Citation Nr: 21010986 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 12-01 339 DATE: February 26, 2021 REMANDED Entitlement to revision of a July 22, 1985, rating decision that denied service connection for a right knee disability, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is remanded. Entitlement to an effective date earlier than February 25, 2010, for the award of service connection for radial head fracture of the right elbow is remanded. Entitlement to an effective date earlier than February 25, 2010, for the award of service connection for fracture of the left elbow is remanded. Entitlement to an effective date earlier than February 25, 2010, for the award of service connection for injury to the left shoulder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from August 1980 to September 1984. These matters come to the Board of Veterans’ Appeals (Board) on appeal from June 2011 and December 2011 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA).  The Veteran testified at a hearing before a Veterans Law Judge (VLJ) on November 27, 2012. A transcript of the hearing is of record. In an April 2014 decision, the Board, in pertinent part, denied the Veteran’s motion for revision of a July 22, 1985 rating decision that denied service connection for a right knee disability on the basis of CUE, and entitlement to an effective date earlier than February 25, 2010 for the awards of service connection for radial head fracture of the right elbow, fracture of the left elbow, and left shoulder injury. The Veteran filed a motion for reconsideration of the decision in April 2014, and in June 2014, a Deputy Vice Chairman of the Board granted the Veteran’s motion. A subsequent decision, rendered by the Board in October 2014, continued to deny the aforementioned claims. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). A December 2015 memorandum decision of the Court vacated the October 2014 Board decision with respect to the aforementioned issues, and remanded the appeal for additional consideration. As this is not a decision on the merits of this matter, it will be signed by just one VLJ. Upon completion of all development, if the matter is returned to the Board, any decision entered will be reviewed by a panel of three Veterans Law Judges. Pursuant to the Court’s decision, in June 2017 and February 2018, the Board remanded the issues of entitlement to revision of a July 22, 1985 rating decision that denied service connection for a right knee disability on the basis of CUE, and entitlement to an effective date earlier than February 25, 2010 for the awards of service connection for radial head fracture of the right elbow, fracture of the left elbow, and left shoulder injury. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. In its June 2017 and February 2018 remand directives, the Board directed the RO to rebuild and or rescan the Veteran’s virtual claims file. As noted by the Board in June 2017, there are numerous documents that were not properly scanned into the virtual file, to include numerous statements and submissions from the Veteran, referred to by the Court’s memorandum decision, that are not found within the virtual file. Upon return of the appeal, the Board, in February 2018, noted that other than a single email from the Appeals Management Center to the Records Management Center repeating the Board’s instruction, there is no documentation that any effort was undertaken to effectuate the Board’s directive. Appellate review by the Board continues to be frustrated by the RO’s noncompliance with the Board’s June 2017 and February 2018 remand directives. The Board acknowledges that a Deferred Rating Decision (VA 21-6789) was associated with the record on May 27, 2020. It was reported that the full file was rescanned on July 29 and 30, 2019, and August 12, 2019 per remand instructions. Upon review of the record, however, correspondences from those respective dates were either recitations of the Board’s remand instructions, or that the rescan request remained ongoing. Indeed, correspondence subsequent to the referenced dates in the May 2020 Deferred Rating Decision, namely those in September 2019, November 2019, and most recently in February 2020, indicate that the rescan request of the Veteran’s physical claims file was not yet completed. Thus, another remand is required to ensure the Board is able to review the entire record pertinent to the Veteran’s appeal. If the original claims file cannot be located, an attempt to obtain the missing records by way of obtaining the Record on Appeal to the Court should be undertaken. Further, the December 2015 memorandum decision of the Court noted that the Board, in October 2014, considered multiple theories of CUE asserted by the Veteran in his challenge of the July 1985 rating decision that had not been considered by the RO in the first instance. As cited by the Board in February 2018, each new theory of CUE is a separate and distinct matter, and the proper course of action is for the Board to refer newly raised theories of CUE to the Agency of Original Jurisdiction (AOJ) for adjudication. See generally Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006). The Court determined that the appeal must be remanded so that the RO could consider the Veteran’s CUE theories (1) addressing the effects of Dr. Turek’s malfeasance on the competence and credibility of any medical evidence relied on by the July 1985 rating decision; (2) potentially incomplete service treatment records; and (3) inadequate testing provided by VA prior to the July 1985 rating decision. The Board in July 2017 and February 2018 directed the AOJ to consider these theories of CUE in the first instance. In October 2020, the RO denied the Veteran’s motion for revision of a July 22, 1985 rating decision in a Supplemental Statement of the Case (SSOC). However, an SSOC cannot serve to announce decisions on issues in the first instance. 38 C.F.R. § 19.31(a). Moreover, the use of the SSOC in this instance caused the misapprehension that the issue of CUE in the 1985 decision was actually on appeal, when in fact it was never adjudicated in the first instance. The Veteran has not filed a notice of disagreement to give appellate jurisdiction, no statement of the case was issued, and no appeal perfected with regard to the 1985 decision. The issue of entitlement to revision of a July 22, 1985 rating decision on the basis of CUE must be remanded again for adjudication by the AOJ in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc); Huston v. Principi, 18 Vet. App. 395, 402-03 (2004). The Board accepts the jurisdiction conferred by the Court for this limited purpose. The matters are REMANDED for the following action: 1. All efforts must be undertaken to rebuild/complete the Veteran’s virtual claims file. As it appears that the entirety of the physical claims file was not scanned, the AOJ must pull it from the scanning facility and rescan all paper files. Efforts to rescan/rebuild the virtual claims file must be documented and associated with the claims file. A formal determination, pursuant to 38 C.F.R. § 3.159(c)(2), must be entered in the record if it is determined that the above records or information do not exist or that efforts to obtain them would be futile. In the event that it is determined that the records are unavailable, provide the Veteran with appropriate notice under 38 C.F.R. § 3.159(c) and provide him an opportunity to respond. In the event that the original claims file is not located, attempts should be undertaken and documented, with assistance of the Office of the VA General Counsel/District Counsel as needed, to obtain the Record on Appeal that was before the Court at the time of the memorandum decision. 2. Issue a rating decision to adjudicate the Veteran’s claims of CUE in July 1985 rating decision that denied service connection for a right knee disability. If adverse, the Veteran must be informed of his appellate rights with respect to the decision. 3. After completing the above, and any other development deemed necessary, review the entire record and readjudicate the Veteran’s earlier effective date claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided with a SSOC. An appropriate period of time should be allowed for response. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.