190724-21383

• Court: Board of Veterans' Appeals
• Decided: April 30, 2020
• Docket: 190724-21383
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 04/30/20 Archive Date: 04/30/20

DOCKET NO. 190724-21383 DATE: April 30, 2020

REMANDED

Whether there was clear and unmistakable error (CUE) in an April 2013 rating decision that denied service connection for left shoulder disability is remanded.

Entitlement to an effective date earlier than January 31, 2019, for the award of service connection of left shoulder bicipital tendonitis, rotator cuff tear, and acromioclavicular joint separation, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Air Force from April 1988 to September 1989.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2019, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and selected the evidence submission option. In December 2019, the Veteran filed a VA Form 20-0996, Decision Review Request: Higher-Level Review, and asked for a retroactive award citing the July 2019 rating decision. Because the Veteran had already sought Board review at the time that she selected higher level review, her request for higher level review may not be accepted. Under the Appeals Modernization Act (AMA), a concurrent election is prohibited. See 38 C.F.R. § 3.2500(b).

The Board finds that a pre-decisional error requires remand of the issue of whether CUE existed in an April 2013 rating decision that denied service connection for a left shoulder disability. Prior to the July 2019 rating decision on appeal, the Veteran raised CUE in connection with her claim for an earlier effective date for the award of service connection for a left shoulder disability. This error, if proven raises the likelihood of altering the outcome of the appealed decision. 38 C.F.R. § 20.802(b). The CUE issue has not been adjudicated by the RO and remand is required.

The issue of entitlement to an earlier effective date is inextricably intertwined with the issue of whether there was CUE in the April 2013 rating decision that denied service connection for left shoulder disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Adjudication of the earlier effective date issue must be deferred.

The matters are REMANDED for the following action:

Adjudicate the issue of whether there was CUE in the April 2013 rating decision that denied service connection for left shoulder disability.

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board J. Seay, 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.