Citation Nr: 18132284
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-17 755
DATE:	September 6, 2018
REMANDED
Entitlement to a compensable rating for an acquired psychiatric disability prior to March 28, 2014, and a rating in excess of 30 percent thereafter is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the U.S. Army from June 1970 to December 1971 and from July 1974 to July 1977.  
Because the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim and reported syndromes and all other information of record, the Board finds that it is more appropriate to characterize his mental health claims broadly, as shown on the title page of this decision.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).
By way of procedural history, the Veteran initially claimed entitlement to service connection for posttraumatic stress disorder (PTSD) in January 2002 and was denied in December of that year, as the regional office (RO) determined that there was no PTSD diagnosis or verifiable stressor indicated at that time.  The Veteran sought to reopen his claim for PTSD in February 2006.  He was denied in March 2007.  Although the RO indicated that the Veteran had a diagnosis of PTSD and verified in-service stressors, it observed that a VA examiner had connected the Veteran’s PTSD to non-service-related events.  In August 2010, the Veteran again applied to reopen his claim for an acquired psychiatric disorder, to include PTSD.  He also applied for a TDIU.  The Veteran’s PTSD denial was confirmed and continued in a July 2011 rating decision.  In a March 2012 rating decision, the Veteran was granted entitlement to service connection for anxiety disorder and given a noncompensable rating, effective August 9, 2010.  He was also denied a TDIU.  He then timely filed a notice of disagreement (NOD) with the initial rating for his anxiety disorder and with the denial of a TDIU.  The Veteran then perfected his appeal with respect to one issue, the denial of a TDIU.  
Later, in April 2015, the RO increased the Veteran’s rating for anxiety disorder to 30 percent, effective March 28, 2014.  The Veteran submitted an NOD, averring that the effective date of the 30 percent rating was incorrect and that the Veteran’s anxiety disorder warranted a still higher rating.  In the body of the Veteran’s NOD, he raised the issue of clear and unmistakable error (CUE), averring that the RO had committed CUE in denying service connection for PTSD in March 2007 and that he should have been awarded a 30 percent evaluation for that disability at that time.  CUE is a very specific and rare kind of error of fact or of law, 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. 20.1404.  However, the Board does not have jurisdiction of this CUE claim because it has not been adjudicated in the first instance by the RO.  Thus, the Veteran’s claim of CUE in the March 2007 rating decision must be referred back to the RO to be adjudicated in the first instance.
In addition, adjudication of the CUE claim would materially affect the determination of the increased rating and TDIU claims and are thus inextricably intertwined with the CUE claim discussed above.  Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).  Regarding the Veteran’s claim of an increased rating for anxiety disorder, the Board notes that a finding of CUE in the March 2007 rating decision would result in an earlier grant of service connection for an acquired psychiatric disorder, and a possible revision of the ratings for that disability through the present day as the consideration of symptomatology related to that diagnosis would need to be evaluated as part of the increased rating claim.  Concerning the Veteran’s claim for a TDIU, a finding of CUE could potentially result in greater combined disability ratings and the consideration of symptoms of an additional disability at earlier periods. 
When assigning a disability rating or an effective date after a final decision has been revised based on clear and unmistakable error, the duty to assist may require that a retrospective medical examination and opinion be obtained where there is not enough evidence to assign evaluations for the time period in question and the evidence of record indicates that a higher rating or ratings may be warranted. Chotta v. Peake, 22 Vet. App. 80 (2008).
The matters are REMANDED for the following action:
1. Ensure the Veteran is apprised of all appropriate VCAA and other notice pertinent to all of his claims, to include his CUE claim with the RO.
2. Adjudicate whether the March 2007 rating decision, which denied entitlement to service connection for PTSD, should be revised or reversed on the grounds of CUE.
3. Thereafter, depending on the outcome of the CUE claim, readjudicate the intertwined claims.  Depending on the service connection and effective dates after adjudication of the CUE claim, obtain a retrospective opinion from an appropriate VA medical professional to evaluate the effective date of service connection of the PTSD and the effective date of the TDIU if necessary. 

 
JENNIFER HWA
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Bush

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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