Citation Nr: 0006645 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 96-32 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: William L. Abernathy, Jr., Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel REMAND The appellant had active military service from April 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which found that new and material evidence had not been submitted to reopen this claim. In a September 1997 supplemental statement of the case, the RO concluded that new and material evidence had been submitted to reopen this claim, and it was then denied on the merits. The issue on appeal has been characterized as shown above because the Board has a legal duty to consider the requirement of whether new and material evidence has been submitted regardless of whether the RO has determined that new and material evidence has been submitted, as it did in this case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). Additional due process is needed prior to appellate disposition of this claim. The Board must consider all documents submitted prior to its decision and review all issues reasonably raised from a liberal reading of these documents. Suttmann v. Brown, 5 Vet. App. 127, 132 (1993) (citations omitted). Where such review reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue or, if appropriate, remand the issue to the RO for development and adjudication; however, the Board may not ignore an issue so raised. Id. On the other hand, the Board is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed by the appellant. See Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998) ("[B]efore [the RO or Board] can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). In May 1996 and November 1997 statements, the appellant's attorney argued that prior decisions denying the claim for service connection for an acquired psychiatric disorder were clearly and unmistakably erroneous. The attorney stated in the 1996 letter "[p]lease recall that [the appellant] has raised the claim of clear and unmistakable error in earlier Rating Decisions denying him service connection for manic depression." The appellant's attorney has clearly raised a claim of clear and unmistakable error (CUE) in prior rating decision(s) that denied service connection for an acquired psychiatric disorder, although it is not known which rating decisions this claim is specifically addressing. The issue that was addressed by the RO was whether new and material evidence had been submitted to reopen this claim. It would be prejudicial for the appellant if the Board were to proceed to decide that question at this point, since the claim for CUE is related to the claim to reopen because if it is found that there was clear and unmistakable error in any prior rating decision denying this claim, new and material evidence would not have to be submitted to reopen the claim. The CUE issue, if resolved favorably, could have a significant effect on the new and material issue on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994) (a claim is intertwined only if the RO would have to reexamine the merits of any denied claim which is pending on appeal before the Board under the pertinent law and regulations specifically applicable thereto). The Board notes that the appellant's attorney requested in the 1997 letter that the Board address "both issues," presumbably to include the CUE claim. That cannot, however, be done at this point, since the claim of CUE has not been adjudicated by the RO, and an appeal of this issue has not been perfected to the Board. Therefore, this issue must be adjudicated prior to appellate disposition of the appellant's claim to reopen that is on appeal. If the determination is adverse to the appellant, he must be given an opportunity to perfect an appeal through filing a timely and adequate notice of disagreement and, following issuance of a statement of the case, a timely and adequate substantive appeal. Accordingly, this claim is REMANDED for the following: Ask the appellant and his attorney to clarify which rating decision(s) are the subject(s) of the claim of CUE and to specify what error(s) or fact or law were made in the rating decision(s). Thereafter, adjudicate the claim of clear and unmistakable error in the referenced rating decision(s). Notify the appellant and his attorney of the determination, and provide an appropriate period of time for the submission of a notice of disagreement should the determination be adverse to the appellant. If the appellant files a timely and adequate notice of disagreement with respect to the claim of clear and unmistakable error, provide him a statement of the case, and notify him of the time limit within which an adequate substantive appeal must be filed in order to assure appellate review of this issue. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to fulfill due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).