Citation Nr: 1032291 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 08-15 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence was received to reopen a claim of entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, appellant's spouse and appellant's brother ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran had active service from February 1959 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Cleveland Ohio Regional Office (RO) of the Department of Veterans Affairs (VA), which denied reopening of service connection for diabetes mellitus to include as due to exposure to chemicals and finding that the evidence received was not new and material. In May 2010, the Veteran testified at a Board video hearing before the undersigned Acting Veterans Law Judge in Cleveland, Ohio. A transcript of the hearing is of record. The Board also notes, as discussed in greater detail below, that the record reflects that the Veteran has advanced a new claim alleging clear and unmistakable error (CUE) in the original June 1983 RO decision which denied service connection for diabetes mellitus. In the Board's view, this is a new claim which is not in appellate status, but is inextricably intertwined with the issue on appeal. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1372 (Fed.Cir.2001) (holding that a remand for readjudication of a claim to reopen is required when a CUE claim is raised and where the facts underlying the claims were sufficiently connected and both claims required "careful evaluation" of the RO decision that denied the claim for service connection). The Veteran's claim, as appealed to the Board, also encompasses the theory that the disability is due to participation in a medical study, chemical exposure, or Agent Orange exposure. However, the Veteran has also claimed an alternate theory, namely that the disability was secondary to his service-connected anxiety disorder (See, VA Form 21-4138 dated in August 2005 and received in February 2006). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that reliance upon a new etiological theory is insufficient to transform a claim which has been previously denied into a separate and distinct, or new, claim. See Ashford v. Brown, 10 Vet. App. 120 (1997). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran seeks to reopen his claim for entitlement to service connection for diabetes mellitus. The Veteran was previously denied service connection for diabetes mellitus in a June 1983 rating decision. The Veteran filed a claim to reopen his claim for service connection in February 2006, and the RO denied the Veteran's request. The Veteran appealed to the Board. Generally, absent the filing of a notice of disagreement (NOD) within one year of the date of mailing of the notification of the initial review and determination of a Veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2009). A review of the record reveals that in his June 2006 notice of disagreement, the Veteran argued that gross error was committed in the June 1983 RO decision. In the April 2008 statement of the case, the RO acknowledged that the Veteran has raised the issue of clear and unmistakable error in the 1983 rating decision, and that the issue had not been adjudicated. If a prior adjudication contains clear and unmistakable error, it did not become final. See 38 C.F.R. § 3.105(a) (2009); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board cannot consider the CUE question in the first instance, and is required to remand the issue to the RO/AMC for adjudication in the first instance. Because a finding of CUE in a prior rating action could render moot the new and material claim on appeal, the Board finds that the CUE claim is inextricably intertwined with the claim on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Because the CUE issue is inextricably intertwined with the new and material issue, this case must be remanded for initial RO adjudication of the CUE matter. See Huston v. Principi, 18 Vet. App. 395 (2004). Although the Veteran has not identified the specific error he believes exists in the June 1983 rating decision which denied entitlement to service connection for diabetes mellitus, the Board finds his claims involve complex matters associated with service department programs the records of which may reasonably be presumed to have publically unavailable at the time of the June 1983 rating decision. See 38 C.F.R. § 3.156(c)(iii) (2009). Further development is required in light of the statements of his service representative at the May 2010 hearing that additional information was now available as to the experimental program in which the Veteran participated. The request to reopen his service connection claim must be remanded to avoid piecemeal adjudication. Upon remand, the RO/AMC should develop and adjudicate the newly raised claim for CUE. The Board notes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2009). Additionally, in claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In the present case, the Veteran was sent a VCAA notice letter in March 2006, prior to the adverse adjudication that is the subject of the present appeal. However that letter did not satisfy the requirements under Kent. The notice letter states merely that the basis of the previous denial was because the condition was not service-connected. Also, the record reflects that the Veteran is receiving Social Security Administration (SSA) disability. (See, VA Form 119 dated in November 2005 and VA Form 21-527 received in November 2005 wherein the Veteran reported that he had claimed or was receiving disability benefits from SSA). While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak, 2 Vet. App. 363; Lind v. Principi, 3 Vet. App. 493, 494 (1992). The medical and legal documents pertaining to this application have not been associated with the claims folder. Thus, the Board finds that the RO should obtain and associate with the claims folder a copy of the SSA decision awarding the Veteran disability benefits, together with all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide any additional information or evidence in his possession pertinent to his claim for entitlement to service connection for diabetes mellitus as a result of participation in a service department medical or chemical exposure program. 2. Appropriate action should be taken to develop and resolve the issue of whether the RO's June 1983 rating decision, denying service connection for diabetes mellitus contains clear and unmistakable error (CUE). If the determination is adverse to the Veteran, the RO should provide the Veteran and his representative notice of the determination and appellate rights. The RO/AMC should return the CUE claim to the Board only if the Veteran initiates and completes his appeal in a timely manner, in accordance with 38 U.S.C.A. § 7105 (West 2002). The CUE claim should be resolved by the RO/AMC in the first instance prior to readjudication of the appellate issue of whether new and material evidence has been received to reopen service connection for diabetes mellitus, if necessary. 3. If CUE is not found, then, the RO/AMC should issue the Veteran and his representative VCAA notice relative to the issue of whether new and material evidence was received to reopen a claim of entitlement to service connection for diabetes mellitus that complies with the mandates of Kent. 4. The RO/AMC should obtain from the SSA a copy of the decision awarding the Veteran disability benefits, together with all legal and medical records underlying that determination. In requesting these records, the RO/AMC should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims folder. If any records sought are not obtained, the RO/AMC should notify the appellant and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After the above development is completed, the RO/AMC should adjudicate, if in order, the issue of whether new and material evidence was received to reopen a claim of entitlement to service connection for diabetes mellitus. If the benefit sought is denied, provided the Veteran a supplemental statement of the case and return the case to the Board. The appellant 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. 2009). _________________________________________________ T. L. Douglas Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).