Citation Nr: 21070776 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-11 316 DATE: November 26, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active duty service from September 2002 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the RO granted service connection for posttraumatic stress disorder (PTSD), effective March 7, 2019, in a May 2019 rating decision. The Veteran did not file a notice of disagreement within one year of the May 2019 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2020 hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. In a May 2020 decision, the Board dismissed the issue of entitlement to service connection for PTSD as moot and found that the issue of an earlier effective date for the grant of service connection was not properly before the Board. The Veteran appealed the Board's May 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted a joint motion for remand (JMR), vacating the May 2020 decision and remanding the matter to the Board. Specifically, the parties alleged that the Board's decision was not in compliance with 38 C.F.R. § 20.104(c), which requires the Board to provide notice of a potential jurisdictional defect and allow the parties 60 days to submit argument and evidence relevant to jurisdiction and to request a hearing on the jurisdictional question. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. A claim of clear and unmistakable error (CUE) is an exception to the rule of finality and is grounds to reverse or revise a decision where the evidence establishes CUE in a final regional office or Board decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.105(a), 20.1400-.1411. CUE is a very specific and rare kind of error that, when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 38 C.F.R. § 20.1403. The Veteran filed a claim of service connection for PTSD in February 2016, which was denied in the July 2016 rating decision on appeal. In March 2019, while this issue was pending before the Board, he filed claims of service connection for a somatic symptom disorder and for increased disability evaluations for his service-connected gastroesophageal reflux disease (GERD), left foot sprain, and left knee patellofemoral pain syndrome. The RO granted service connection for PTSD and assigned an effective date in March 2019 in its May 2019 rating decision, which was not appealed. At the March 2020 hearing and in an August 2021 brief, the Veteran and his representative argued that the RO erred in assigning a March 2019 effective date for the grant of service connection for PTSD because the Veteran submitted his claim of service connection in February 2016 and that the issue of service connection for PTSD was pending before the Board at the time of the May 2019 rating decision granting service connection. The Board construes the Veteran's and his representative's arguments as an allegation of clear and unmistakable error in the May 2019 rating decision. The Board cannot consider the issue of CUE in a rating decision in the first instance. See Jarrell v. Shinseki, 20 Vet. App. 326 (2006). As such, this matter must be remanded for consideration by the RO. See id. at 333. In addition, a remand is needed to comply with the JMR granted by the Court in July 2021. Specifically, the parties agreed that when the Board raises a question as to a potential jurisdictional defect on its own initiative, all parties and their representative(s) must be provided notice as to the potential jurisdictional defect and allowed a period of 60 days following the date of mailing of the notice to present additional evidence or argument concerning the jurisdictional issue. 38 C.F.R. § 20.104(c). As such, the AOJ should send such notice to all parties and afford them the opportunity to submit argument and evidence, and to request a hearing to present oral argument on the potential jurisdictional defect. The matter is REMANDED for the following actions: 1. Adjudicate the Veteran's allegation of clear and unmistakable error (CUE) in the May 2019 rating decision that assigned a March 7, 2019 effective date for the grant of service connection for PTSD. Specifically, the RO should determine whether the failure to recognize an already-perfected claim of service connection for PTSD constitutes CUE. The issue of CUE should not be certified to the Board unless the Veteran perfects an appeal by submitting a timely VA Form 10182. 2. Send a notice letter to the Veteran and his representative as to the potential jurisdictional defect regarding the claim of entitlement to service connection for PTSD and allow a period of 60 days following the date of mailing of the notice to present argument and additional evidence concerning the potential jurisdictional issue. The notice letter must afford the Veteran an opportunity to request a hearing to present oral argument as to the jurisdictional defect. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.