Citation Nr: 21070107 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-51 349 DATE: November 23, 2021 REMANDED Whether an April 2014 rating decision and an August 2015 statement of the case (SOC) denying service connection for a psychiatric disorder, claimed as depression and anxiety, are based on clear and unmistakable error (CUE), is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disorder, claimed as depression and anxiety, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1979 to December 1983. This appeal arises from a May 2017 rating decision, denying CUE in an April 2014 rating decision and an August 2015 SOC, denying service connection for depression and anxiety. The Veteran testified at a Board of Veterans' Appeals (Board) virtual hearing in July 2021, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. 1. Whether an April 2014 rating decision and an August 2015 SOC denying service connection for a psychiatric disorder, claimed as depression and anxiety, are based on CUE. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disorder, claimed as depression and anxiety. The Veteran contends that he developed depression and anxiety, along with related stomach problems, during service. By history, the Veteran submitted a claim for service connection for "depression/anxiety" in June 2013. Then, an April 2014 agency of original jurisdiction (AOJ) rating decision denied the claim for service connection for depression and anxiety, including citing that the Veteran's service treatment records do not contain complaints, treatment, or diagnosis for this condition. Following receipt of a September 2014 notice of disagreement (NOD), the AOJ issued an August 2015 SOC that continued to deny the issue of service connection for depression and anxiety. The August 2015 SOC findings included that service treatment records show no complaint, treatment, signs/symptoms or diagnosis of depression or any mental disorder during the Veteran's military service. Regarding the issue of CUE, the Veteran's attorney submitted April 2016 correspondence arguing CUE in the AOJ's April 2014 rating decision and August 2015 SOC. In support of the CUE argument, the Veteran's attorney submitted a copy of a December 7, 1979 service treatment record, that indicates the Veteran's complaints of stomach pain were caused by anxiety, and specifically states, "imp[ression]: psych anxiety creating problem." In response, the AOJ issued the appealed May 2017 rating decision. The May 2017 rating decision properly addressed the issue of whether there was CUE in the April 2014 rating decision and August 2015 SOC determinations. However, the AOJ's September 2017 SOC incorrectly removed consideration of the CUE matter; and limited consideration to whether new and material evidence had been received to reopen the claim of service connection for depression and anxiety. Based upon the Veteran's hearing testimony, and his attorney's supporting arguments, it appears that the Veteran is attempting to establish his underlying service connection claim for a psychiatric disorder, claimed as depression and anxiety, by either showing CUE in prior AOJ determinations or by showing that new and material evidence has been submitted to reopen the claim. See July 2021 Board hearing transcript, at 15. Based on the procedural development presented in this case and to ensure due process compliance, a remand for corrective action is required. In particular, the AOJ should issue a corrective SOC/supplemental SOC (SSOC) identifying that the Veteran is appealing two separate means for establishing service connection for a psychiatric disorder, claimed as depression and anxiety, namely whether CUE was committed in the identified prior AOJ determinations and whether new and material has been submitted to reopen the claim. Accordingly, the matters are REMANDED for the following action: 1. Issue to the Veteran a corrective SOC/SSOC. The corrective SOC/SSOC should identify and address the Veteran's two separate theories raised for establishing service connection for a psychiatric disorder, claimed as depression and anxiety. They are (1) Whether there was CUE in the AOJ's April 2014 rating decision and August 2015 SOC, denying service connection for a psychiatric disorder, claimed as depression and anxiety; and (2) Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disorder, claim as depression and anxiety. Regarding CUE, the AOJ should consider the following: (1) The Veteran's, via his attorney, argument that there was evidence that the Veteran's anxiety began in service, along with the submission of a duplicate December 7, 1979 service treatment record, that indicates the Veteran's complaints of stomach pain were caused by anxiety, and specifically states, "imp[ression]: psych anxiety creating problem." (2) A December 1983 in-service emergency treatment note assessing trauma secondary to personal assault. Thereafter, allow the Veteran and his attorney the appropriate time period to respond, and if appropriate, return the case to the Board for appellate review. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.