Citation Nr: 21000819 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 06-09 477 DATE: January 6, 2021 REMANDED Whether new and material evidence has been received to re-open the previously denied claim for service connection for residuals of a facial injury/nasal trauma is remanded. Whether new and material evidence has been received to re-open the previously denied claim for service connection for allergic rhinitis is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Army from December 1975 to December 1978 to include Reserve service. This matter is on appeal from a July 2005 rating decision. The Veteran testified at a Decision Review Officer (DRO) hearing in November 2006. A transcript of this hearing has been associated with the record. The Board has remanded this appeal on several occasions, most recently in September 2018, for further development. Unfortunately, the Board finds that further remand is warranted for additional development before adjudication of the Veteran’s appeal. During the pendency of the appeal, the Veteran and his representative raised a claim of clear and unmistakable error (CUE) in a February 1989 administrative decision that found the Veteran’s reported February 1977 and October 1978 treatments for facial and nasal trauma to be the result of willful misconduct. In the September 2018 Board remand, the Board noted that neither a rating decision nor an administrative decision has ever directly addressed the Veteran’s claim of CUE. If an issue of CUE in a rating decision has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board cannot address this matter, in the first instance. Bowen v. Shinseki, 25 Vet. App. 250, 254 (2012). The Board also specifically found that the Regional Office (RO) incorrectly issued an April 2014 supplemental statement of the case (SSOC) to address the issue of CUE. An SSOC cannot be issued to adjudicate a claim never previously decided or when the CUE claim has not been previously decided in any original adjudication. See 38 C.F.R. § 19.31 (a). As such, the Board remanded the issues so that the Agency of Original Jurisdiction (AOJ) could adjudicate the referred CUE claim in a rating decision. The issues of service connection for residuals of a facial injury, service connection for allergic rhinitis, and TDIU were remanded as intertwined. The Board also noted in the remand instructions that the Board would exercise appellate jurisdiction over the claim only if a timely appeal was perfected. Thereafter, an August 2020 SSOC was issued to address the issue of new and material evidence to reopen the Veteran’s claim of service connection for residuals of a facial injury to include nasal trauma and whether there was CUE with the February 1989 administrative decision. The Board finds the August 2020 SSOC does not comply with the September 2018 Board remand. Initially, the issue of CUE was referred to the Agency of Original Jurisdiction so that a rating decision or administrative decision, which could be appealed by the Veteran should he so choose, be issued which considered the issue of clear and unmistakable evidence. However as noted above, the issuance of the August 2020 SSOC does not substantially comply with the September 2018 Board’s remand directives because an SSOC cannot be issued to adjudicate a claim never previously decided, and the CUE claim has not been previously decided in any original adjudication. The August 2020 SSOC acknowledges the CUE issue, but the Veteran is not provided an opportunity to appeal the CUE decision as presented nor is a complete CUE analysis provided. Under these circumstances, the Board finds that another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for compliance with the September 2018 Board remand instructions is warranted. As the issues of service connection for residuals of a facial injury to include nasal trauma; service connection for allergic rhinitis; and entitlement to TDIU were noted by the September 2018 Board to be intertwined, these issues are also remanded. In addition, an August 2020 Social Security Administration (SSA) inquiry, the Board notes that the Veteran was granted entitlement in May 2018. Review of the record does not show that the SSA decision or related SSA documents have been associated with the record. As the SSA records may provide pertinent evidence as to the Veteran’s claims, remand is warranted to obtain these records that relate to the Veteran’s claimed issues. See Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Confirm with the Social Security Administration (SSA) whether the Veteran is receiving SSA disability benefits, obtain his SSA records relating to his claims for nasal trauma, allergic rhinitis and TDIU and associate them with the Veteran’s claims file. All records/responses received must be associated with the electronic claims file. 3. Formally adjudicate in either a rating decision or administrative decision whether the February 1989 rating decision was clearly and unmistakably erroneous. The Veteran is advised that the Board will exercise appellate jurisdiction over this claim only if a timely appeal is perfected. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. (Continued on the next page)   If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.