Citation Nr: 21013910 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-31 920 DATE: March 10, 2021 REFERRED ISSUES The motion alleging clear and unmistakable error (CUE) in the December 2000 rating decision, for the grant of service connection for a right knee disorder, is referred. The motion alleging CUE in the December 2000 rating decision, for the grant of service connection for a left knee disorder, is referred. The motion alleging CUE in the June 2006 rating decision, for the grant of service connection for a right knee disorder, is referred. The motion alleging CUE in the June 2006 rating decision, for the grant of service connection for a left knee disorder, is referred. REMANDED ISSUES Entitlement to an effective date prior to January 29, 2015, for the grant of service connection for a right knee disorder, is remanded. Entitlement to an effective date prior to January 29, 2015, for the grant of service connection for a left knee disorder, is remanded. REASONS FOR REFERRALS AND REMAND The Veteran served on active duty from January1980 to March 2000. These matters are before the Board of Veterans’ Appeals (Board) on appeal from the April 2015 and June 2015 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned in a July 2019 Travel Board hearing, the transcript of which is included in the claims file. By way of procedural background, the Veteran was awarded service connection for his left knee disability in an April 2015 rating decision. He was granted service connection for the right knee disability in a June 2015 rating decision. The Veteran was assigned an effective date of January 29, 2015 for both knee disabilities. In January 2016, the Veteran filed a Notice of Disagreement (NOD) with the effective dates assigned for his right and left knee disabilities. Statements of the Case (SOC) were issued in May 2017. The Veteran submitted a timely substantive appeal in June 2017 as it pertained to the effective dates assigned for his right and left knee disabilities. As explained in the Board’s November 2019 remand, the Veteran’s representative first raised contentions of CUE with respect to the claims for earlier effective dates for the awards of service connection for the knee disabilities during the July 2019 Board hearing. See Hearing Transcript at pg. 4. Because the contentions of CUE regarding earlier effective dates had not yet been adjudicated by the AOJ in the first instance, the Board found that it did not have jurisdiction over those claims at that time. See November 2019 Board Remand at pg. 2; see also Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006) (en banc) (providing that each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the Agency of Original Jurisdiction (AOJ) in the first instance). As such, the Board remanded these matters for initial adjudication by the AOJ. A review of the record since the November 2019 Board remand reveals that the determination of whether there was CUE in the prior December 2000 and June 2006 decisions has not been adjudicated in a rating decision or administrative determination by the AOJ. Instead, the AOJ issued a Supplemental SOC (SSOC) in September 2020. However, as specifically indicated in 38 C.F.R. § 19.31 (a), “in no case” will a SSOC be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the SOC, or to respond to a NOD on newly appealed issues that were not addressed in the SOC. Therefore, the Veteran has not yet been afforded full due process of law with respect to the matter of CUE and the finality issues concerning the prior denials noted above. For clarification purposes, the Board will refer the CUE claims to the AOJ for initial adjudication by way of a rating decision or administrative decision. As noted previously in its November 2019 remand, the Board does not have jurisdiction over these claims at this time. The Veteran is advised that, following the issuance of an initial decision by the AOJ, he is required to file a proper notice of disagreement. The outcome of the CUE motions referred herein potentially affects the issues of entitlement to an effective date prior to January 29, 2015 for the grant of service connection for the right and left knee disabilities. Thus, these issues must be deferred pending resolution of the CUE motions. The matters are REMANDED for the following actions: 1. Formally adjudicate in either a rating decision or administrative decision whether the December 2000 and/or the June 2006 rating decisions were clearly and unmistakably erroneous (Referred Claims). 2. Then, readjudication of the earlier effective date claims on appeal shall only proceed after either: (a.) the Veteran’s opportunity to initiate an appeal of the CUE claims to the Board has expired (one-year period from the date of mailing of the notification of the determination being appealed), or (b.) the Veteran has appealed the CUE claims for review by the Board, or (c.) a grant of the CUE claims by the AOJ has resulted in earlier effective dates for the grant of service connection for the right and/or left knee disabilities. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.