Berta

Please advise...

http://community.hadit.com/search/?&q=cue,appeals%20management%20center

This remand is currently located at the 'Appeals Management Center.'

As I enter year number-six of this claim/appeal, (see following)...I'm seeking 'any-and-all' input/advice.

Citation Nr: 	
Decision Date: 06/12/15    Archive Date: 06/19/15

DOCKET NO.  	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUE

Whether there was clear and unmistakable error (CUE) in the July 2002 rating decision that granted an effective date of May 30, 2002 for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:  Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from September 1969 to June 1971.  This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which determined that there was not CUE in a July 2002 rating decision of the Philadelphia, Pennsylvania RO, granting a TDIU effective from May 30, 2002.  Since May 2010, the Veteran has argued for an earlier effective date.  

The Board notes that in August 2014, the Veteran requested that a copy of his claims file be sent to his attorney, and in February 2015, the Board complied with this request.  However, it is noted that at present the Board recognizes only Veterans of Foreign Wars of the United States as his accredited representative in the matter on appeal, in accordance with the VA Form 21-22, Appointment of Veteran's Service Organization as Claimant's Representative, which the Veteran filed in September 2013.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Philadelphia RO granted service connection for posttraumatic stress disorder (PTSD, the Veteran's sole service-connected disability) in a July 2002 rating decision, and assigned the following ratings:  a 30 percent rating, effective September 1, 1995; a temporary total rating under 38 C.F.R. § 4.29, effective September 13, 1995; a 30 percent rating, effective January 1, 1996; and a 70 percent rating, effective May 30, 2002.  In the decision, the RO also granted a TDIU rating, effective May 30, 2002.  The Veteran did not file an appeal with the decision regarding the rating assignments or effective dates, and the rating decision became final.  Once a rating decision that establishes a disability rating and its effective date becomes final, the only way that such a decision can be revised is if it contains CUE.  Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).  

In a May 2010 statement, the Veteran alleged that the RO committed CUE in the assignment of the effective date for the TDIU award, arguing that the correct effective date should be retroactive to 1995 when he was awarded service connection for PTSD, based on VA medical records showing total disability (e.g., in December 1995 VA hospital records include a diagnosis of PTSD, chronic, with unemployability).  The Honolulu RO denied the CUE claim in the October 2012 rating decision.  However, in numerous letters and email correspondence, such as those in January 2011, October 2011, November 2012, October 2013, January 2014, February 2014, and April 2014, the Veteran has argued that his CUE claim was essentially misconstrued, and that he felt the RO in July 2002 erred in the rating assignment for his PTSD.  He maintains that based on VA medical reports that were ignored or overlooked at the time, the RO should have assigned an initial disability rating of at least 70 percent, rather than 30 percent, for his PTSD effective from September 1995.  He further states, in October 2013, that the higher initial rating for PTSD would then result in a "subsequent adjustment" of the TDIU effective date such that it would be much earlier than May 30, 2002.  

As the CUE claim with regard to the initial disability rating for PTSD is inextricably intertwined with the CUE claim on appeal with regard to an earlier effective date for the grant of a TDIU, it should be adjudicated before proceeding to consider the proper effective date for the TDIU.

Accordingly, the case is REMANDED for the following action:

1.  Adjudicate the claim of whether there was CUE in the July 2002 rating decision that granted service connection for PTSD and assigned initial ratings as follows:  a 30 percent rating, effective September 1, 1995; a temporary total rating under 38 C.F.R. § 4.29, effective September 13, 1995; a 30 percent rating, effective January 1, 1996; and a 70 percent rating, effective May 30, 2002.  Note that the Veteran argues that the proper initial rating for PTSD should be at least 70 percent, effective in September 1995, based on VA clinical findings (see, e.g., the Veteran's substantive appeal statements in October 2013 for citations to VA records to support his claim).  

2.  After the development requested above is completed, readjudicate the claim of whether there was CUE in the July 2002 rating decision that granted an effective date of May 30, 2002 for the award of a TDIU.  If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case, afford them opportunity to respond, and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal.  38 C.F.R. § 20.1100(b) (2014).