Citation Nr: 1332450 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 11-08 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for a heart condition, to include paroxysmal atrial fibrillation, to include as secondary to hypertension and service-connected diabetes mellitus. 3. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to an effective date earlier than June 3, 2010, for the grant of service connection for PTSD, to include whether there was clear and unmistakable error (CUE) in an October 2008 rating decision that denied service connection for PTSD. REPRESENTATION Veteran represented by: Robert W. Gillikin, Attorney WITNESSES AT HEARING ON APPEAL Veteran and L.H. ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The Veteran served on active duty from October 1951 to July 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2010 and February 2011 rating decisions of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). The May 2010 rating decision denied service connection for a heart condition and declined to reopen a claim of service connection for hypertension. The February 2011 rating decision granted service connection for PTSD, rated 30 percent, effective June 3, 2010. In September 2011, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. This case was before the Board previously in December 2011, when the Board reopened the claim of service connection for hypertension, and remanded the underlying service connection claim along with the claim of service connection for a heart disorder for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action on his part is required. REMAND In its December 2011 decision, the Board noted that the issue of whether the January 2008 rating decision denying service connection for hypertension contained clear and unmistakable error (CUE) had been raised by the record in a statement received in January 2010, but had not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board found that it did not have jurisdiction over that claim, and referred it to the AOJ for appropriate action. The record does not reflect that any action has been taken to adjudicate that issue. Although the Board does not have jurisdiction over the claim, the matter is inextricably intertwined with the current claim of service connection for hypertension, as a finding of CUE would render the current service connection claim moot. Accordingly, consideration of the current claim for service connection for hypertension must be deferred until the CUE claim is adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc), aff'd, 631 F.3d 1380, 1383 (Fed. Cir. 2011), vacated and remanded for reconsideration, 132 S. Ct. 75 (2011), modified, 26 Vet. App. 31 (2012). Similarly, the Veteran's claim of service connection for a heart condition is being claimed, in part, as secondary to hypertension; hence, consideration of whether the Veteran is entitled to service connection for a heart condition must be deferred pending resolution of that claim. Therefore, the Board is requesting in this remand that the RO adjudicate the CUE claim to ensure that the Board can continue with adjudication of the inextricably intertwined claims over which it has jurisdiction. Finally, regarding the rating and effective date assigned for PTSD, under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the appellant. In essence, the following sequence is required: There must be a decision by the RO, the claimant must express timely disagreement with the decision (by filing an NOD within one year of the date of mailing of notice of the RO decision), VA must respond by explaining the basis of the decision to the claimant (in the form of a SOC), and finally, the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.203. Here, a February 2011 rating decision granted service connection for PTSD, rated 30 percent, effective from June 3, 2010. The rating decision also addressed the matter of whether there was CUE in an October 2008 rating decision that denied service connection for PTSD, and found that there was no CUE in that earlier rating decision. In a statement received in January 2012, the Veteran's then representative expressed disagreement with the rating and effective date assigned for the award of service connection for PTSD, and continued to assert that there was CUE in the earlier October 2008 rating decision's denial of service connection for PTSD. This statement may be liberally construed as a timely NOD as to the rating and effective date assigned for the Veteran's PTSD, to include as to the matter of whether there was CUE in the October 2008 rating decision. The RO has not issued an SOC in this matter. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), when this occurs, the Board must remand the case and instruct the RO that the issue remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.9(c). The Veteran is advised that his claims of entitlement to an initial rating in excess of 30 percent for PTSD, and entitlement to an effective date earlier than June 3, 2010, for the grant of service connection for PTSD, to include whether there was CUE in an October 2008 rating decision that denied service connection for PTSD, are not before the Board at this time, and will be before the Board only if he timely files a substantive appeal after an SOC is issued. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Adjudicate the matter of whether there was CUE in the January 2008 rating decision's denial of service connection for hypertension. 2. After the above development has been completed, re-adjudicate the Veteran's service connection claims. If any remains denied, issue an appropriate supplemental SOC and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board. 3. Regarding the claims for an increased rating and earlier effective date for the Veteran's PTSD, to include whether there was CUE in an October 2008 rating decision that denied service connection for PTSD, review the file and issue an appropriate SOC addressing those matters. The Veteran and his attorney must be advised of the time limit for filing a substantive appeal, and that, in order for the Board to have jurisdiction in either matter, he must submit a timely substantive appeal. If he timely perfects an appeal in either matter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 your appeal. 38 C.F.R. § 20.1100(b) (2013).