Citation Nr: 21063449 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-39 647 DATE: October 14, 2021 REMANDED Entitlement to an effective date prior to March 16, 2010 for the award of service connection for posttraumatic stress disorder (PTSD), to include whether there was clear and unmistakable error (CUE) in a July 2007 rating decision, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1980 to March 1987, discharged with under honorable conditions. This appeal is before the Board on appeal of a November 2015 rating decision, which denied an earlier effective date for PTSD as CUE was not shown. By way of history, in an April 2015 decision, the Board granted service connection for PTSD. In a May 2015 rating decision, the Agency of Original Jurisdiction (AOJ) implemented the Board's decision by including the PTSD with already service-connected depressive disorder with substance abuse dependency and assigned the evaluation of 70 percent disabling effective March 16, 2010. In March 2021, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge of the Board. The transcript of the hearing is associated with the record. Issue: Entitlement to an effective date prior to March 16, 2010 for the award of service connection for PTSD, to include whether there was CUE in a July 2007 rating decision. As noted above, the AOJ implemented the Board's grant of PTSD assigning a 70 percent evaluation effective March 16, 2010, the date of the Veteran's claim to reopen was received. The Veteran contends his effective date should go back to his original claim in January 2006. See Notice of Disagreement (NOD) dated December 2015. Specifically, he contends that he was not aware of an appeal deadline because he was found "incompetent" and that his "social impairments are the reason" for not filing his appeal on time. Id. However, the AOJ issued a Statement of the Case (SOC) in July 2018 which continued the denial of an earlier effective date indicating that no substantive appeal was filed from the date of the SOC issued in July 2009, and the award was assigned effective March 16, 2010, the date VA received the Veteran's claim to reopen. Additionally, the AOJ addressed the Veteran's arguments that he was "incompetent" and therefore was not aware of a missed appeal. The AOJ found that no CUE was made in the July 2007 rating decision. At his March 2021 Board hearing, the Veteran was provided an opportunity to set forth his contentions for an earlier effective date for the award of service connection for PTSD. Notably, the Veteran's representative raised a new theory of CUE for seeking an earlier effective date citing 38 CFR 3.156 of the regulations governing new and material evidence, specifically "Part C Service Department Records". See Hearing Transcript at 5. The Veteran's representative argued that "when BVA remanded [in January 2014] for the VA to develop for those [JSRRC] specific records did they verify the stressor and acknowledge that entitlement to service connection was established. Therefore, we argue that those records should fall under the Service Department records and the effective date of the claim should be January 31, 2006 based on the receipt of records that existed at the time of the VA's first decision [January 2007], and were not obtained." Id. at 6. The Board notes that each new theory of clear and unmistakable error is a separate and distinct matter, and the Board lacks jurisdiction over any theory of clear and unmistakable error that has not been adjudicated by the AOJ in the first instance. See Andre v. Principi, 301 F.3d 1354, 131 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). The Veteran's assertion of CUE as raised at the hearing, if substantiated, would allow for assignment of an earlier effective date for the grant of service connection for PTSD. Moreover, the Veteran's CUE claim must first be adjudicated in a rating decision and separately perfected for appeal. Therefore, the Board must defer consideration of the Veteran's claim for earlier effective date and must remand this case to the AOJ for its initial consideration. The Board finds that a remand is necessary before the Veteran's claim can be properly adjudicated. The matters are REMANDED for the following action: 1. Adjudicate the Veteran's new assertion of CUE in the original July 2007 rating decision. Address the theory raised at his March 2021 Board hearing citing 38 CFR 3.156 of the regulations governing new and material evidence, specifically Part C Service Department Records. See Hearing Transcript at 5. 2. Readjudicate the claim of entitlement to an effective date earlier than March 16, 2010 for the grant of service connection for PTSD. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.