Citation Nr: 21021471 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 12-00 324A DATE: April 13, 2021 REMANDED Entitlement to an earlier effective date for service connection for a lumbar disability, is remanded. Entitlement to an earlier effective date for service connection for an acquired psychiatric disorder, is remanded. Entitlement to an earlier effective date for service connection for a voiding dysfunction, is remanded. Entitlement to an earlier effective date for service connection for peripheral neuropathy of the right lower extremity, is remanded. Entitlement to an earlier effective date for service connection for peripheral neuropathy of the left lower extremity, is remanded. Entitlement to an earlier effective date for special monthly compensation (SMC) based on the loss of use of a creative organ, is remanded. Entitlement to an earlier effective date for a total disability rating based on individual unemployability (TDIU), prior to May 19, 2009, is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1971 to February 1972. This matter was previously before the Board in December 2019 in which the Board granted an increased rating for the Veteran’s service-connected lumbar disability. The Board also denied earlier effective dates for the grant of service connection for lumbar disability, voiding dysfunction, peripheral neuropathy of right and left lower extremities, acquired psychiatric disorder, and for special monthly compensation. Additionally, the Board remanded the Veteran’s claim for TDIU, prior to May 9, 2009. However, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the parties entered into a Joint Motion for Partial Remand (JMPR) and agreed to vacate that portion of the Board’s decision that denied the Veteran’s earlier effective date claims. The Veteran did not contest the Board’s decision that granted an increased rating for his lumbar disability; therefore, this claim is no longer on appeal. Thus, the issues that concern earlier effective dates have been returned to the Board for further review. 1. Entitlement to an earlier effective date for service connection for a lumbar disability. The Veteran contends an earlier effective date of January 16, 1973 is warranted for service connection for a lumbar disability. In the JMPR, he contends that he did not receive notice of his appellate rights of the November 1973 rating decision. He specifically cited the case of Ruel v. Wilkie, 918 F.3d 939 (Fed. Cir. 2019) which held that “as a matter of law, that to meet the notice requirements of § 3.103(e), an explicit denial must state, or clearly identify in some other manner, the claim(s) being denied. The decision must also meet the other requirements of § 3.103(e), including the reason for the decision, the date effectuated, and notice of appellate rights.” Ruel v. Wilkie, 918 F.3d at 942. A review of the evidence shows that the Veteran submitted an application for service connection for a back disability on January 16, 1973. An April 1973 rating decision denied the claim and the Veteran was notified of the denial in an April 1973 Notification Letter. In May 1973, the Veteran submitted additional evidence to be considered; however, the RO continued to deny the claim since the Veteran failed to report for a scheduled examination. The Veteran was advised of this denial in a July 1973 Notification Letter. Subsequent evidence shows the Veteran agreed to report to the examination and he received a VA examination for his back in October 1973. However, a November 1973 rating decision denied the Veteran’s claim again. The Board notes that the evidence does not show a Notification Letter advising the Veteran of the denial or his rights to appeal. Notably, it appears records may be missing from the file as the record is absent of any correspondence from the Veteran or from VA beginning from November 1973 until January 1992. In addition, the record shows a November 2011 VA email correspondence where it was noted that Volume 2 of the Veteran’s file was missing, and that VA was attempting to rebuild the Veteran’s folder. However, there is no indication that any of the records were obtained or whether the Veteran’s folder was rebuilt. As a result, the Board finds remand is warranted so that the RO can attempt to locate any missing records or rebuild the file as necessary for the period from November 1973 to January 1992. 2. Entitlement to an earlier effective date for service connection for an acquired psychiatric disorder. 3. Entitlement to an earlier effective date for service connection for a voiding dysfunction. 4. Entitlement to an earlier effective date for service connection for peripheral neuropathy of the right lower extremity. 5. Entitlement to an earlier effective date for service connection for peripheral neuropathy of the left lower extremity. 6. Entitlement to an earlier effective date for SMC based on the loss of use of a creative organ. 7. Entitlement to an earlier effective date for a TDIU, prior to May 19, 2009. The Veteran’s remaining earlier effective date claims referenced above are inextricably intertwined with the Veteran’s lumbar disability claim. Therefore, these claims must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180. The matters are REMANDED for the following action: 1. Undertake all necessary efforts to locate Volume 2 of the Veteran’s claims file, and any other missing records from November 1973 until January 1992. If the records are unavailable, the RO should make all efforts to rebuild any missing portion of the claims file, to include associating with the Veteran’s claims file any rating decisions, notification letters, statements of the case, and other pertinent missing documents generated by VA. All efforts to rebuild the missing contents of the claims file in accordance with proper procedures must be completed and documented in narrative form and associated with the claims file. If the AOJ is unable to secure any pertinent records, the Veteran should be notified, and given an opportunity to respond. (Continued on the next page)   2. After the above development has been completed, readjudicate the claims. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.