Citation Nr: 0003488 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 98-12 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to an increased rating for asthma, currently evaluated as 10 percent disabling. 2. Whether the September 1959 rating decision contains clear and unmistakable error in reducing the veteran's disability rating for service-connected asthma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and son ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from October 1940 to September 1943 when he was discharged due to physical disability. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the veteran was denied service connection for nicotine dependence arising from the use of tobacco products in service and chronic obstructive pulmonary disease secondary to tobacco use in service in August 1997. He submitted a notice of disagreement in September 1997 and was issued a statement of the case that same month. He did not address these issues in subsequently received correspondence, including a VA Form 9 submitted in January 1998. In April 1998, the veteran's representative informed the RO that the veteran was not seeking appellate review with respect to these issues. Accordingly, they are not before the Board at this time. The Board also notes that the veteran submitted a statement at the time of his RO hearing in October 1998 in which he raised a new issue for consideration. The veteran contended that he believed he had not received compensation for his dependents for the period from 1945 to 1959. At his hearing, the veteran raised yet another new issue when he related that he believed there was clear and unmistakable error (CUE) in the 1944 rating decision that reduced his disability rating from 30 percent to 10 percent. The issues of entitlement to service connection for increased compensation for dependents and CUE in the September 1944 rating decision having therefore been reasonably raised, these matters are referred to the RO for appropriate action. REMAND The veteran served on active duty from October 1940 to September 1943 when he was discharged from service because of asthma. A review of the veteran's claims file reveals that he was originally granted service connection for asthma in January 1944. He was assigned a 30 percent disability rating, effective September 23, 1943, the date after his discharge from service. The 30 percent rating remained in effect until a rating decision dated in September 1944 reduced the rating to 10 percent. The reduction was based upon the results of a VA examination in September 1944. Finally, the veteran's asthma rating was reduced to a noncompensable level in a September 1959 rating decision, based on the results of a July 1959 VA examination. There is no evidence in the claims file to show that the veteran appealed either reduction in his disability rating. In December 1996 the veteran submitted a claim to have his 10 percent rating for asthma "reinstated" as it had been discontinued in 1949 [sic]. The claim was treated as a request for an increased rating. The veteran was afforded VA examinations in February and May 1997. The veteran's request for an increased rating was denied by way of a rating decision dated in August 1997. The veteran submitted a notice of disagreement (NOD) with the August 1997 rating decision in January 1998. The veteran submitted his NOD on a VA form 9. He said that he had been awarded a 30 percent disability in 1944 and that it was unjustly taken from him in 1949. The veteran's asthma rating was increased to 10 percent in February 1998. His representative submitted a statement in April 1998 expressing disagreement with the 10 percent rating assigned. The RO then issued a statement of the case (SOC) in regard to the increased rating for the veteran's asthma disability. The veteran submitted a substantive appeal that was received in August 1998. He stated that he believed his disability rating should be greater than 10 percent. He also said that his previous 10 percent rating was taken without cause. The veteran was then afforded a hearing at the RO in Wichita, Kansas, in October 1998. In addition to his testimony, the veteran submitted a written statement, dated in October 1998. The statement raised several new issues. First, the veteran appeared to assert that there was clear and unmistakable error (CUE) in the September 1959 decision that reduced his 10 percent rating. Second, he questioned whether he should have received additional compensation for his listed dependents between 1945 and 1959. At his hearing, the veteran presented testimony on his increased rating claim, and addressed the issue of CUE in the 1959 rating decision. The veteran also appeared to raise an additional issue of CUE in the September 1944 rating decision (Transcript p. 12). Subsequent to the hearing, the veteran's claim for an increased rating for his service-connected asthma was denied and he was issued a supplemental statement of the case providing notice and explanation of the decision in October 1998. Finally, in January 1999, the RO denied the veteran's claim of CUE in the September 1959 rating decision and provided notice of the action that same month. The veteran's representative submitted a VA Form 646, on behalf of the veteran, in March 1999 arguing that there was CUE in the September 1959 rating decision. However, no statement of the case was issued that addressed the issue of CUE in the September 1959 rating decision. Therefore, that issue is remanded to the RO for issuance of an SOC and such further development as may be necessary. See Manlincon v. West, 12 Vet. App. 238 (1999). The remanding of this issue must not be read as an acceptance of jurisdiction over the same by the Board. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 1991); Roy v. Brown, 5 Vet. App. 554 (1993). The RO should return this issue to the Board only if the veteran perfects his appeal in full accordance with the provisions of 38 U.S.C.A. § 7105. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, who may possess additional records pertinent to his claim. When the requested information and any necessary authorizations have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained. 2. Then, the veteran should be scheduled for a VA pulmonary examination to determine the severity of his asthma disability. All necessary evaluations, tests, and studies, including pulmonary function studies should be performed. The examiner should also provide an opinion concerning the impact of the asthma disability on the veteran's ability to work as well as distinguish between any disability caused by the veteran's nonservice-connected chronic obstructive pulmonary disease. The rationale for all opinions expressed should be explained. The claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report is to reflect whether such a review of the claims file was made. The report must be typed. 3. Thereafter, the RO should review the claims file and ensure that all development actions have been completed in full. Then, the RO should undertake any other indicated development. 4. The RO should then readjudicate the issue of entitlement to an increased rating for asthma. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case and provide the veteran and his representative with an appropriate opportunity to respond. 5. The RO should issue a statement of the case pertaining to the issue of CUE in the September 1959 rating decision. The veteran should be informed of the requirements to perfect an appeal with respect to this issue. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. SHANE A. DURKIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals 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 your appeal. 38 C.F.R. § 20.1100(b) (1999).