Citation Nr: 21064124
Decision Date: 10/19/21	Archive Date: 10/19/21

DOCKET NO. 17-29 445
DATE: October 19, 2021

REMANDED

Entitlement to revision of a February 2014 rating decision denying entitlement to service connection for bipolar disorder based on clear and unmistakable error (CUE) is remanded.

Entitlement to service connection for alcohol abuse is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from January 1977 to January 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The Veteran previously submitted a motion to revise a February 2014 rating decision denying service connection for bipolar disorder based on clear and unmistakable error, or CUE, and a claim for service connection for alcohol abuse.  The Veteran's appeal was last before the Board in 2019.  In a January 2019 decision, the Board indicated that it could not reach the merits of the Veteran's CUE motion at that time because remand was necessary for the RO to issue a statement of the case (SOC) regarding the timeliness of a March 2015 notice of disagreement that disagreed with the outcome of the February 2014 rating decision.  The Board explained that, because the adjudication of whether the notice of disagreement had been timely could potentially vitiate the finality of the February 2014 rating decision, adjudication of the CUE motion had to be deferred until the timeliness question was addressed in an SOC.  Additionally, the Board remanded the claim for service connection for alcohol abuse as inextricably intertwined with the other issue being remanded.  

A review of the record indicates that in September 2019 the RO issued an SOC finding that the March 2015 notice of disagreement had not been timely in.  The Veteran did not appeal this decision within 60 days.  Subsequently, the RO returned the CUE and service connection claims to the Board for readjudication.  However, doing so was improper, as the RO did not readjudicate the CUE and service connection claims in a supplemental statement of the case (SSOC) before returning them to the Board.  Failure to do so is a denial of the Veteran's due process rights.  To that end, pursuant to 38 C.F.R. § 19.31, the RO must provide an SSOC to an appellate or his or her representative when there are any material changes in or addition to information included in the statement of the case or any prior SSOC, to include receipt of additional pertinent evidence.  To ensure the Veteran is provided with due process and adequate notice, the issues must be returned for readjudication based on all evidence of the record.  

Accordingly, the matters are REMANDED for the following action:

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Readjudicate the claims on appeal.  If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran an SSOC and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Rademacher, 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.