Citation Nr: 1300323	
Decision Date: 01/04/13    Archive Date: 01/11/13

DOCKET NO.  11-26 950	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for loss of part of the skull, intermediate area.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. A. Rein, Counsel


INTRODUCTION

The Veteran had active service from June 1944 to June 1945.
 
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas.

The issue of CUE in a January 1946 rating decision that reduced the rating for service-connected traumatic lesion of the skull, residuals of gunshot wound from 100 percent to 50 percent, effective from March 17, 1946, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See VA Form 9 of October 2011 and statement of the Veteran dated in September 2012.  Therefore, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

A review of record shows that the Veteran, in October 2011 and September 2012, has submitted statements that the Board has construed as raising a claim of clear and unmistakable error (CUE) in a January 1946 rating decision that reduced the rating for service-connected traumatic lesion of the skull, residuals of gunshot wound from 100 percent to 50 percent effective from March 17, 1946.  This CUE claim has not been adjudicated by the RO.  

In this case, the Board finds that the claim for a higher rating for loss of part of the skull, intermediate area, is inextricably intertwined with the CUE claims noted above, because, if the RO/AMC finds CUE in the January 1948 rating decision, higher ratings may be assigned retroactively.  Therefore, adjudication of the claim that is currently in appellate status must be deferred pending the adjudication of the CUE claims.  Harris v. Derwinski, 1 Vet. App. 180 (1991). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

As noted above, the issue on appeal is inextricably intertwined with the CUE claim that was referred to the Agency of Original Jurisdiction in the Introduction.  After the appropriate action is taken with respect to that claim, then take any action deemed warranted with respect to the appellate issue.  Then, re-adjudicate the claim for a rating in excess of 30 percent for loss of part of the skull, intermediate area.  If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).