Citation Nr: 1753734 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-40 898A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1968 to June 1971, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, the Veteran testified at a RO hearing before a Decision Review Officer and, in June 2017, he testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the record. In a September 2010 statement, the Veteran raised the issue of whether there is clear and unmistakable error (CUE) in a March 1986 rating decision that denied entitlement to service connection for PTSD. However, such claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). In a statement received in September 2010, the Veteran raised the issue of whether there is CUE in a March 1986 rating decision that denied a claim for service connection for PTSD. In this regard, such rating decision confirmed and continued October 1985 and November 1985 decisions that denied service connection for PTSD on the basis that, while the Veteran served in Vietnam, he did not have a diagnosis of such disorder. In his September 2010 CUE claim, the Veteran alleged that VA failed to properly develop his claim as he was in combat in Vietnam and had the stressors to support a PTSD diagnosis at the time of the March 1986 rating decision. The Board finds that the Veteran's application to reopen his claim of entitlement to service connection for PTSD is inextricably intertwined with his referred claim regarding whether there is CUE in the March 1986 rating decision that initially denied such claim. In this regard, the Veteran's application to reopen his claim may be rendered moot by a favorable outcome regarding the CUE claim. Therefore, consideration of the Veteran's application to reopen his claim of entitlement to service connection for PTSD should be deferred pending the adjudication of his claim regarding whether there is CUE in the March 1986 rating decision. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The Board also observes that, in August 2017, the Veteran submitted additional evidence in support of his claim that included an assessment from A. Watkins, Psy D., that reflected a diagnosis of PTSD related to his service in Vietnam. The Veteran has not waived AOJ consideration of such evidence. Therefore, in the readjudication of his claim, the AOJ should specifically consider such newly received evidence. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the referred claim of CUE in the March 1986 rating decision that denied service connection for PTSD. The Veteran should be notified of this decision and of his appellate rights. 2. After adjudicating the Veteran's CUE claim, and conducting additionally indicated development, the Veteran's application to reopen his previously denied claim for service connection for PTSD should be readjudicated based on the entirety of the evidence, to specifically include the evidence received in August 2017, which consists of an assessment from A. Watkins, Psy D., that reflected a diagnosis of PTSD related to the Veteran's service in Vietnam. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (West 2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).