BVA9501805 DOCKET NO. 92-02 426 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to an effective date earlier than March 14, 1990, for the award of a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Jr., Counsel INTRODUCTION The veteran served on active duty from March 1951 to December 1952. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 1989 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for a bilateral knee disability. The case also comes to the Board on appeal of a February 1991 rating decision assigning an effective date of March 14, 1990 for a grant of non-service-connected pension benefits; the veteran appeals for an earlier effective date. The case was previously before the Board in September 1992 at which time it was remanded. It was returned to the Board in November 1994. REMAND The veteran has made various arguments as to why his non-service- connected pension benefits should be effective prior to March 14, 1990. One of his assertions is that there was clear and unmistakable error (CUE) in an August 1977 RO decision which denied his December 1976 claim for pension. Detailed contentions as to CUE in the August 1977 RO decision are set forth in a multiple-page VA Form 1-646 submitted by the veteran's representative in February 1992. The introduction of the Board's September 1992 remand referred the issue of CUE to the RO for appropriate action, but the RO has not adjudicated the matter. Notwithstanding a contrary comment in the Board's last remand, review of the record and subsequent decisions of the United States Court of Veterans Appeals (Court) indicates that the question of CUE in the August 1977 RO decision is part and parcel of the pending claim for an earlier effective date for pension, and it must be addressed at this time. In order to avoid prejudice to the veteran, the CUE issue must initially be adjudicated by the RO. Bernard v. Brown, 4 Vet.App. 384 (1993). The RO should take note of precedential Court decisions defining what does and what does not constitute CUE. See, e.g., Caffrey v. Brown, 6 Vet.App. 377, 383-384 (1994); Damrel v. Brown, 6 Vet.App. 242, 245 (1994); Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993); Russell v. Principi, 3 Vet.App. 310, 313-314 (1992). While further delay in appellate action in this case is regrettable, an additional remand is required to comply with decisions of the Court. In view of the foregoing, the case is REMANDED to the RO for the following action: 1. The RO should formally adjudicate the issue of CUE in the August 1977 RO decision which denied a claim for pension benefits. The RO should take note of the detailed CUE allegations found in the February 1992 VA Form 1-646 from the veteran's representative, and should apply all controlling legal authority including precedent Court decisions. 2. If the RO finds no CUE in the August 1977 RO pension decision, and continues to deny an earlier effective date for pension, it should provide the veteran and his representative with a supplemental statement of the case, and they should be given an opportunity to respond. Thereafter, the case should be returned to the Board. A Board decision on the other issue on appeal (service connection for a bilateral knee disability) is deferred pending completion of the remand action. L. W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).