Citation Nr: 1808101 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-24 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and M.F. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1999 to January 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, a videoconference hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. From the date of the hearing, the record was held open for 60 days in order to allow for the submission of additional evidence for consideration; however, no additional evidence was submitted within that time. The Board notes that a motion of whether there was clear and unmistakable error (CUE) in the RO's rating decisions of May 2007 (which denied entitlement to service connection for a right shoulder disability) and June 2010 (which determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for a right shoulder disability) has been raised by the record in testimony from the Veteran's representative at the September 2017 hearing, but this issue 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 Veteran if action on his part is required. REMAND On review of the record, the Board has found that additional development is necessary for the claim on appeal. In a May 2010 statement, the Veteran asked that VA obtain his treatment records from the West Los Angeles VA Medical Center (VAMC) from January 2007 to the present. The oldest VA treatment reports currently of record from that facility are dated in April 2007. On remand, all outstanding VA treatment records must be obtained. In addition, at his September 2017 hearing, the undersigned Veterans Law Judge confirmed for the record that the Veteran had an upcoming appointment with a private physician in October 2017, at which time that private physician would reportedly complete a Disability Benefits Questionnaire (DBQ) pertaining to the Veteran's right shoulder. At present, the record of this appointment (to include any DBQ) is not currently of record, and an attempt should be made to obtain such record(s) on remand. Finally, as noted in the Introduction, the Board has found that a motion of whether there was CUE in the RO's rating decisions of May 2007 and June 2010 has been raised by the record in testimony from the Veteran's representative at the September 2017 hearing. The Board finds that the current issue on appeal of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability is inextricably intertwined with that motion for CUE (which has been referred to the AOJ for appropriate action), because the determination on the CUE claim could materially affect the outcome of the current claim to reopen. 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). Therefore, consideration of the appeal on the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability must be deferred pending adjudication of the CUE claim that is now being referred to the AOJ. Accordingly, the case is REMANDED for the following actions: 1. With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider, obtain all records of the Veteran's treatment for his right shoulder, to specifically include all records (including any DBQs) from the private physician whom he was scheduled to have an appointment with in October 2017. If any identified records cannot be obtained and it is determined that further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Obtain all VA treatment records prior to April 2007 (to specifically include all treatment records from the West Los Angeles VAMC from January 2007), as well as all updated VA treatment records from September 2017 to the present. 3. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), ensure that the motion of whether there was CUE in the RO's rating decisions of May 2007 and June 2010 has been adjudicated, the Veteran has been notified, and provided with appellate rights, and then readjudicate the claim on appeal of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability (after any further development indicated, and in light of the determination made on the CUE motion). If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B (2012). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).