Citation Nr: 20019797 Decision Date: 03/17/20 Archive Date: 03/17/20 DOCKET NO. 17-27 267 DATE: March 17, 2020 REMANDED Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1986 to November 1989. The Board has recharacterized the Veteran’s claim for mental health problems, personality disorder, nervous disorder, and depressive disorder more broadly to an acquired psychiatric disability in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Before reaching the merits of the claim for an acquired psychiatric disability, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized this issue accordingly. In the October 2010 VA Form 21-4138, the Veteran requested entitlement to service connection, in part, for right elbow injury, left bicep strain, and right thumb injury. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). It would violate due process for the Board to take jurisdiction without an initial determination by the AOJ. Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2019). In a December 2019 VA Form 9, the Veteran requested a videoconference Board hearing for the issues of entitlement to service connection for neck disorder, back disorder, skin disorder, right arm disorder, and peripheral neuropathy of the bilateral lower extremities. Since these issues are currently pending for a Board hearing, they will not be discussed on the merits in this decision. In the May 2017 VA Form 9 and at the January 2020 Board hearing, the Veteran’s representative raised the issue of whether there was clear and unmistakable error (CUE) in the February 1991 VA rating decision that denied service connection for an acquired psychiatric disability. This issue has not been adjudicated by the AOJ, and the Board is precluded from adjudicating that claim in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326, 333-34 (2006). A claim as to whether new and material evidence has been submitted sufficient to reopen a claim following a previous final denial requires that the previous denial is final. As noted above, the claim referred to the AOJ regarding whether there was CUE in the February 1991 VA rating decision challenges the finality of the underlying February 1991 VA rating decision with regard to the issue of service connection for an acquired psychiatric disability. As a result, the referred claim for whether there was CUE in the February 1991 VA rating decision may impact the issue on appeal for whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disability and any potential effective date could be impacted. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: After the AOJ adjudicates the issue of whether there was CUE in the February 1991 VA rating decision, then readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.