Citation Nr: 18151656 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 17-00 778 DATE: November 19, 2018 REMANDED Entitlement to an earlier effective date prior to December 18, 2014 for a 70 percent rating for posttraumatic stress disorder (PTSD), also claimed as anxiety, depression and personal trauma, to include based on clear and unmistakable error in the June 7, 1972 rating decision is remanded. Entitlement to an earlier effective date for service connection for traumatic brain injury based on clear and unmistakable error in the June 7, 1972 rating decision is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from May 1970 to April 1972. 1. Entitlement to an earlier effective date prior to December 18, 2014 for a 70 percent rating for posttraumatic stress disorder (PTSD), also claimed as anxiety, depression and personal trauma, to include based on clear and unmistakable error in the June 7, 1972 rating decision. 2. Entitlement to an earlier effective date for service connection for traumatic brain injury based on clear and unmistakable error in the June 7, 1972 rating decision. Remand is necessary for the AOJ to adjudicate the Veteran's claim for an earlier effective date based on clear and unmistakable error (CUE). Although the December 2016 statement of the case adjudicated the issue of entitlement to an earlier effective date for service connection for PTSD, the RO did not address the Veteran's claim of CUE. In his October 2015, November 2015, and October 2018 correspondence, the Veteran specifically pled that there was clear and unmistakable error in the June 1972 rating decision in that it incorrectly diagnosed him with a “constitutional or developmental abnormality”, rather than an acquired psychiatric disorder. Additionally, the Veteran contended that when he filed a petition to reopen his claim, the RO again focused on a “constitutional or developmental disability” when the Veteran contends that he was seeking to reopen an acquired psychiatric disability, of anxiety and a nervous condition. To date, the RO has not addressed these contentions or adjudicated the Veteran's CUE claim in the first instance; therefore, these claims must be remanded for RO adjudication. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc) (“[W]hen attacking a prior RO decision, each [clear and unmistakable error theory] must be presented to and adjudicated by the RO in the first instance, and, if not, the Board lacks jurisdiction over the merits of the matter.”). The Board cannot consider the issue of CUE in the first instance. Therefore, on remand, the AOJ should adjudicate the newly raised claims of CUE. The Board emphasizes that to obtain appellate review of any issue, including CUE, not currently in appellate status, a perfected appeal must be filed. See 38 C.F.R. §§ 20.200, 20.201, 20.202 (2017). Therefore, remand is necessary. Additionally, the Board finds that the Veteran's claim for an earlier effective date for migraines and traumatic brain injury, including as a result of CUE in the June 7, 1972 rating decision is inextricably intertwined with the present claim. Therefore, it is deferred pending additional development and adjudication. The matters are REMANDED for the following action: The RO should adjudicate, in a formal rating decision, whether there was clear and unmistakable error (CUE) in the June 7, 1972 rating decision, which denied service connection for a nervous condition AND whether there was CUE in the January 8, 1973 rating decision which denied finding new and material evidence to reopen a claim of service connection for a nervous disorder because there was no “new and material evidence to establish service connection for a disability which is constitutional or developmental.” Consideration should also be given to the argument that no decision on a psychiatric disorder was made, just on a personality disorder, and that as such, the initial claim has remained open. Thereafter, the Veteran and his representative should be provided written notice of the determinations. If the claims are denied, they must be provided with notice of the Veteran’s right of appeal. The discrete issues of clear and unmistakable error should not be certified to the Board unless the Veteran perfects an appeal by submitting a timely notice of disagreement, and following issuance of a statement of the case, the filing of a timely substantive appeal. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel