Citation Nr: 21012196 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-11 213 DATE: March 3, 2021 ORDER Entitlement to a revision of a May 2017 rating decision that denied service connection for depression on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105 is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is remanded. FINDING OF FACT The May 2017 rating decision did not become final, which renders the Veteran’s CUE claim moot. CONCLUSION OF LAW As the Veteran’s CUE claim has been rendered moot, the claim must be dismissed without prejudice. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.105(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1961 to March 1963. This matter is on appeal to the Board of Veterans’ Appeals (Board) from May 2017 and May 2018 rating decisions. In his VA Form 9, the Veteran requested a hearing; however, this request was withdrawn in February 2021 correspondence. At the outset, the Board acknowledges that the claims for depression and PTSD have been filed and adjudicated separately. The Board has recharacterized these separate claims as one claim in accordance with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Additionally, the Board acknowledges the Veteran’s contentions that CUE was committed in the May 2017 rating decision denying his claim for service connection for depression due to a lack of in-service incurrence. In March 2018, the Veteran submitted a Statement in Support of Claim requesting to reopen based on CUE. He explained that he was treated for a mental health condition on active duty when he began hearing voices and attempted suicide. Following this treatment he was discharged from service. In a May 2018 rating decision, the Veteran’s claim for revision was denied, as well as a claim for service connection for PTSD. The Veteran timely appealed this decision, which is currently on appeal. Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105 (a). A CUE claim under 38 C.F.R. § 3.105 (a) only applies to decisions that are final. A CUE claim “cannot lie as to a decision that is still open to direct review.” May v. Nicholson, 19 Vet. App. 310, 317 (2005). A CUE claim cannot be filed as to a matter that is still appealable or pending. Id. at 320. Pursuant to 38 C.F.R. § 3.156 (b), when new and material evidence is received within the one- year appeal period, the agency of original jurisdiction (AOJ) should readjudicate the claim. As noted above, the Board finds that the Veteran submitted new and relevant evidence in the form of argument in March 2018 correspondence. Specifically, the Veteran described the circumstances surrounding the in-service incurrence of his mental health disability and asked that the May 2017 rating decision be reconsidered. Review of the record reflects that the RO did not reconsider the claim, but instead processed the claim as a new CUE claim, rendering the May 2018 rating decision non-final. 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156 (b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). For the reasons discussed above, the Board finds that the May 2017 rating decision is not final. As the rating decision has been found to be non-final, the Veteran’s CUE motion is rendered moot, and dismissal, without prejudice to refiling, is warranted. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.105 (a). REASONS FOR REMAND In his March 2018 VA examination for psychiatric disabilities, the examiner diagnosed the Veteran with major depression, alcohol abuse disorder (in remission), and PTSD. The examiner opined it was less likely than not that the Veteran’s depression was related to service, explaining that the Veteran had likely been depressed since age 12 when his father died suddenly in an accident. While in treatment during service, the Veteran reported missing his father and stated that his death had been difficult for him, as well as reporting conflict with his stepfather, disinterest in school, dropping out of school, and drinking excessively in high school. The Veteran had reported upon discharge that he did not like being in the military, did not like the structure, and did not like following rules and being held accountable. The examiner did not provide an opinion on whether the Veteran’s disability clearly and unmistakably existed prior to service, and, if so, was aggravated beyond its natural progression by service. Regarding PTSD, the examiner opined that the diagnosis was a result of a post-service vehicular manslaughter. This incident was the only stressor listed pertaining to Criterion A, with citation to a 2014 medical record that indicated it as his traumatic stressor. The examiner did not address the Veteran’s descriptions of several traumatic incidents in service, such as being threatened to be thrown overboard and being beaten by his fellow servicemembers. The Board finds that remand for a new examination is necessary. First, VA treatment records have been added to the claims file since the examinations. The records contain several treatment notes detailing military sexual trauma, intimidation, and physical abuse in service that are attributed by his treating providers to be the cause of his current psychiatric symptoms, such as nightmares, flashbacks, and hypervigilance. Second, an opinion must be obtained as to whether the Veteran’s psychiatric disabilities existed prior to service, and, if so, whether they were aggravated beyond natural progression by service. The matter is REMANDED for the following action: Obtain a VA opinion regarding the Veteran’s psychiatric disabilities. The examiner must opine whether the disabilities clearly and unmistakably existed prior to service. If so, the examiner must opine whether the disability was aggravated beyond its natural progression by service. If the condition did not clearly and unmistakably exist prior to service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disabilities are related to service. To that end, the examiner is reminded that the relevant inquiry is not only whether service caused the disability, but whether the disability was incurred in service. In reaching the above conclusions, the examiner must consider and address the Veteran’s suicide attempt and subsequent treatment in service, as well as post-service treatment records relating the Veteran’s symptoms and diagnoses to in-service events and his submitted lay statements. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.