Citation Nr: 1337503 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-29 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for residuals of oral injury. 2. Entitlement to service connection for left leg/knee disability. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for sleep apnea. 6. Entitlement to service connection for right elbow disability. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney at Law ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from February 1986 to May 20, 1993, which has been characterized as honorable, and from May 20, 1993 through May 2004, which has been characterized as dishonorable for VA compensation benefits purposes. The issues of entitlement service connection for residuals of oral injury, left leg/knee disability and hypertension come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 by the Baltimore, Maryland Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connections for PTSD comes before the Board on appeal from a November 2010 rating decision. The remaining issues come before the Board on appeal from March 2011 rating decision. In his May 2010 substantive appeal, the Veteran requested a Board hearing, which was scheduled in July 2013. However, in a July 2013 statement, the Veteran's representative withdrew the hearing request. Additional evidence has been submitted to the Board along with a waiver of RO consideration. Nevertheless, as the Board must remand the issues on appeal for adjudication of an inextricably intertwined issue, it will have an opportunity to consider such evidence. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 In July 2013, the Veteran's representative filed a motion claiming clear and unmistakable error (CUE) in a March 17, 2011 administrative decision, which determined that the Veteran's service from May 20, 1993 through May 28, 2004 was considered dishonorable due to misconduct and, in turn, a bar to VA compensation benefits. It does not appear that this CUE claim has been adjudicated by the RO and the Veteran's representative has requested that the current issues on appeal be remanded as they are inextricably intertwined with the CUE claim. In other words, the CUE claim could directly impact the service connection issues. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the RO should consider and adjudicate the claim of CUE in the March 2011 determination before the Board can address the service connection issues on appeal. Moreover, in a November 2010 rating decision, the RO denied service connection for PTSD. In December 2010, the Veteran filed a notice of disagreement to this decision. Further, in a March 2011 rating decision, the RO denied service connection for sleep apnea and a right elbow disability. In April 2011, the Veteran filed a notice of disagreement to this decision. Thus, the Veteran has expressed a desire to appeal these issues pursuant to 38 C.F.R. § 20.201. However, the RO has not issued a statement of the case with respect to these issues. The United States Court of Appeals for Veterans Claims has held that, where the record contains a notice of disagreement as to an issue, but no statement of the case, the issue must be remanded to the RO to issue a statement of the case, and to provide the veteran an opportunity to perfect the appeal. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, as these issues are also inextricably intertwined with the above CUE claim, after the RO has adjudicated such claim, the RO should issue a statement of the case with respect to the issues of service connection for PTSD, sleep apnea and right elbow disability. Accordingly, the case is REMANDED for the following action: 1. The RO should consider the claim of CUE in the March 17, 2011 administrative decision, which determined that the Veteran's service from May 20, 1993 through May 28, 2004 was considered dishonorable due to misconduct and, in turn, a bar to VA compensation benefits. 2. Thereafter, the RO should take appropriate action pursuant to 38 C.F.R. § 19.26 (2013), to include furnishing the Veteran and his representative with an appropriate statement of the case with respect to the issues of entitlement to service connection for PTSD, sleep apnea and right elbow disability. The Veteran and his representative should be advised of need to file a timely substantive appeal if the Veteran desires to complete an appeal as to these issues. 3. Thereafter, and any further development deemed necessary in light of any decisions made above, the RO should review the expanded record and determine if the remaining benefits sought on appeal can be granted. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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. 2012). _________________________________________________ MARJORIE A. AUER 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) (2012).