Citation Nr: 20023085 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 17-56 158 DATE: April 3, 2020 REMANDED Whether new and material evidence has been received to reopen a claim for entitlement to service connection for duodenal ulcers is remanded. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus type II is remanded. REFERRED A motion of whether there was clear and unmistakable error (CUE) in the RO’s rating decision of May 2008 (which denied entitlement to service connection for duodenal ulcers and diabetes mellitus, among other claims) has been raised by the Veteran in a December 2012 VA Form 21-4138, Statement in Support of Claim. However, 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. § 20.904. REASONS FOR REMAND The Veteran served on active duty from August 1976 to October 1979, from October 2001 to September 2002, from November 2002 to December 2003, and from September 12, 2005 to September 26, 2005. This matter is on appeal from a March 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. The issues of whether new and material evidence has been submitted to reopen claims for service connection for duodenal ulcers and diabetes mellitus type II are remanded. The Veteran contends that he is entitled to service connection for duodenal ulcers and diabetes mellitus type II. On review of the record, the Board has found that additional development is necessary for the claims on appeal. As discussed in the referral section of this decision, the issue of whether there was CUE in a May 2008 decision has been raised by the Veteran in a December 2012 VA Form 21-4138. The AOJ has not yet adjudicated this CUE motion, and the Board is precluded from adjudicating that motion in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326, 333-34 (2006). Because the referred motion of CUE challenges the finality of the underlying May 2008 rating decision with regard to the issues of service connection for duodenal ulcers and diabetes mellitus, the claims on appeal seeking to reopen the claims of service connection for duodenal ulcers and diabetes mellitus are inextricably intertwined with the motion alleging CUE in the May 2008 rating decision. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Therefore, consideration of the appeal on the issues of whether new and material evidence has been received to reopen claims for entitlement to service connection for duodenal ulcers and diabetes mellitus type II must be deferred pending adjudication of the CUE motion that is now being referred to the AOJ.   The matters are REMANDED for the following action: 1. Adjudicate the Veteran’s CUE motion raised in the December 2012 VA Form 21-4138, notify the Veteran of the decision, and provide him with his appellate rights. 2. Thereafter, readjudicate the claims on appeal of whether new and material evidence has been received to reopen a claim of entitlement to service connection for duodenal ulcers and diabetes mellitus. If any benefits sought on appeal remain 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. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, Associate 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.