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hypertension Cue Clear And Unmistakable Error
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pacmanx1
Hello this is my first post and like many veterans I need your thougts on an issue of appeal. Can someone let me know What this really means. Will I get my change of effective dates or is the BVA joking around also had three issues denied in 2005, filed a NOD in 2005 was sent a SOC in 2006 and returned a form 9 in 2006 and didn't get a response until 2008 with this appeal. wow what is really going on? Citation Nr: 0845064
Decision Date: 12/31/08 Archive Date: 01/07/09
DOCKET NO. 06-29 381 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky
THE ISSUES
1. Entitlement to an effective date earlier than September
29, 2005, for the assignment of a 60 percent rating for
psoriasis.
2. Entitlement to an effective date earlier than September
29, 2005, for the assignment of a 30 percent rating for
irritable bowel syndrome.
3. Entitlement to an effective date earlier than February
18, 2004, for the assignment of a 30 percent rating for a
mood disorder.
4. Whether new and material evidence has been received
sufficient to reopen a claim of entitlement to service
connection for hypertension, and, if so, whether service
connection is warranted.
5. Whether new and material evidence has been received
sufficient to reopen a claim of entitlement to service
connection for migraine headaches, and, if so, whether
service connection is warranted.
6. Whether new and material evidence has been received
sufficient to reopen a claim of entitlement to service
connection for neck and back pain, and, if so, whether
service connection is warranted.
WITNESS AT HEARING ON APPEAL
Veteran
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
J. B. Freeman, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1986 to July
1994.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2006 rating decision of the RO
in Louisville, Kentucky, which granted increased ratings of
60 and 30 percent for psoriasis and irritable bowel syndrome,
respectively, effective September 29, 2005. The issue of an
earlier effective date for a 30 percent rating for a mood
disorder arises from a December 2004 rating decision. The
petitions to reopen service connection claims for
hypertension, migraine headaches and neck and back pain arise
from a May 2005 rating decision.
The veteran testified before the undersigned at a May 2008
videoconference hearing. A transcript has been associated
with the file.
The veteran has also submitted statements, the first in May
2007, to the effect that his service connected psoriasis and
its treatment damages his clothes, creating a financial
hardship. The Board finds that these statements are
sufficient to make a claim for a clothing allowance. See
38 C.F.R. § 3.810 (2008). The matter is REFERRED to the RO
for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
The veteran's earlier effective date claims must be remanded
to afford the veteran due process. The RO granted a 60
percent rating for psoriasis and a 30 percent rating for IBS
in a May 2006 rating decision. The veteran filed a Notice of
Disagreement that same month. The RO adjudicated the
veteran's disagreement with the effective dates assigned for
his 60 percent and 30 percent ratings as earlier effective
date claims. While the veteran has pursued the claim as
developed by the RO, the veteran's May 2006 Notice of
Disagreement also made two motions for revision of prior
rating decisions on the basis of clear and unmistakable error
(CUE). These motions attempt to establish the same benefit
in a collateral attack on prior decisions. The first motion
indicates that the November 2003 rating decision implementing
his previous 30 percent rating for psoriasis must have been
in error because use of a corticosteroid, the grounds for his
60 percent psoriasis rating, had begun in 1997, well before
the November 2003 rating decision. He indicated that "the
VA would correct the mistake" if he reapplied for benefits.
The second motion stated that the RO had mistakenly service
connected him for gastroesophageal reflux disease (GERD) and
duodenitis in his original October 1998 rating decision, when
in fact he had IBS, and bore that diagnosis at that time.
Correctly rated, the veteran argues that his initial rating
would have been 30 percent, not ten percent. The Board
concludes that the veteran has adequately pled these CUE
motions. See Russell v. Principi, 3 Vet. App. 310, 313-314
(1992). The RO did not adjudicate either CUE motion.
If these motions are granted, the appealed earlier effective
date claims presently before the Board would become moot. As
a result, the CUE motions and effective date claims are
inextricably intertwined. See Parker v. Brown, 7 Vet. App.
116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)
(issues are "inextricably intertwined" when a decision on
one issue would have a "significant impact" on a veteran's
claim for the second issue). Accordingly, the effective date
claims must be remanded to provide the RO the opportunity to
address the CUE motions in the first instance. See Bernard
v. Brown, 4 Vet. App. 384, 394 (1993).
Other matters must also be remanded. The veteran is service
connected for a mood disorder. In December 2004, the veteran
was granted an increased rating of 30 percent in a RO rating
decision. A June 2005 report of contact indicates that the
veteran claimed to have filed a claim for reconsideration of
the effective date of his recent increase. As this is the
only increase in compensation for the prior two years, the
Board concludes that the veteran was attempting to
disagreement with the effective date determination. The
Board concludes that the veteran has submitted a timely
Notice of Disagreement as to the effective date for the
assignment of a 30 percent rating for a mood disorder. The
claim must be remanded to allow the RO to provide the veteran
with a statement of the case (SOC) on this issue. Manlincon
v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v.
Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9
Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-
92). However, the issue will be returned to the Board after
issuance of the SOC only if perfected by the filing of a
timely substantive appeal. See Smallwood v. Brown, 10 Vet.
App. 93, 97 (1997); Archbold, 9 Vet. App. at 130.
Finally, the veteran has several claims pending which are in
various stages of appellate development, to include claims
for earlier effective dates and petitions to reopen claims
for service connection for hypertension, migraine headaches
and neck and back pain. When the veteran testified before
the undersigned, only the effective date issues were
addressed. There is no indication that he was not given an
opportunity to testify as to all of the matters on appeal.
Nevertheless, since this case has to be remanded he must be
extended the opportunity to present at another hearing to
discuss the matters that were not presented at the May 2008
Board videoconference hearing.
Accordingly, the case is REMANDED for the following action:
1. The RO should adjudicate the motions
of CUE as to the November 2003 rating
decision that assigned a 30 percent rating
for psoriasis effective from August 30,
2002, and the October 1998 rating decision
that assigned a 10 percent rating for
GERD.
2. If the CUE motions are denied, the RO
should readjudicate the earlier effective
date claims on the merits. If the
benefits sought are not granted, the
veteran and his representative should be
furnished a SSOC and afforded a reasonable
opportunity to respond before the record
is returned to the Board for further
review.
3. Provide the veteran with a statement
of the case as to the issue of an earlier
effective date for the assignment of a 30
percent rating for a mood disorder. The
veteran should be informed that he must
file a timely and adequate substantive
appeal in order to perfect an appeal of
this issue to the Board. See 38 C.F.R. §§
20.200, 20.202, and 20.302(. If a
timely substantive appeal is not filed,
the claim should not be certified to the
Board.
4. Schedule the veteran for a hearing
before a Veterans Law Judge at the RO on
the issues of the petitions to reopen, if
he so desires, and notify him of the
scheduled hearing at the latest address of
record. This hearing is to be scheduled
in accordance with applicable law.
The veteran has the right to submit additional evidence and
argument on the matter or matters 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 of
Veterans' Appeals 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 Supp. 2008).
_________________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
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