Citation Nr: 21076327
Decision Date: 12/23/21	Archive Date: 12/23/21

DOCKET NO. 18-33 077
DATE: December 23, 2021

REMANDED

The issue of entitlement to an effective date earlier than August 26, 2016, for the grant of service connection for posttraumatic stress disorder (PTSD), to include on the basis of clear and unmistakable error (CUE) in a May 1996 rating decision, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1989 to November 1995.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  As explained below, the issue on appeal has been expanded to include the Veteran's allegation of CUE in a May 1996 rating decision.

In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

Although the Board sincerely regrets the additional delay, further action is needed on the Agency of Original Jurisdiction's (AOJ) part before the Board may adjudicate the Veteran's claim of entitlement to an effective date earlier than August 26, 2016, for the grant of service connection for PTSD.

In this regard, the Board notes that the Veteran's assertions in a November 2017 statement amount to an allegation of CUE in a May 1996 decision that denied a November 1995 claim of entitlement to service connection for PTSD.  Specifically, the Veteran has asserted that it was clear and unmistakable error not to grant an effective date in November 1995 for the award of service connection for PTSD because the record at the time of the May 1996 rating decision was the same record that served as the basis for the grant in December 2016, in that it showed assaults and the onset of a psychiatric disorder in service.

Although the AOJ has adjudicated the issue of entitlement to an earlier effective date for the grant of service connection for PTSD, it has not adjudicated the related question of whether the May 1996 rating decision contained CUE.  Therefore, that question must be remanded for adjudication by the AOJ in the first instance.  See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc); Huston v. Principi, 18 Vet. App. 395, 402-03 (2004).  Furthermore, as the Veteran's appeal of the effective date assigned following the grant of service connection for PTSD is inextricably intertwined with her allegation of CUE in the May 1996 rating decision, the Board must delay reaching a determination on the claim for an earlier effective date until after the CUE allegation is addressed by the AOJ.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other).

The matters are REMANDED for the following action:

1. Adjudicate the Veteran's allegation of clear and unmistakable error in the May 1996 rating decision.

2. After the above action has been completed, readjudicate the claim of entitlement to an effective date earlier than August 26, 2016, for the grant of service connection for PTSD, to include consideration of the Veteran's allegation of CUE.  If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and her representative and afford them an opportunity to respond.  Then, return the case to the Board, if in order.

 

 

S. C. Krembs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Fagan

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.