Citation Nr: 1325135 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 05-03 355A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from November 2002 to June 2004. This matter came to the Board of Veterans' Appeals (Board) in connection with the Veteran's appeal of the initial disability rating assigned for her service-connected left hip bursitis. In a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, the RO, in pertinent part, granted service connection for left hip bursitis and assigned a 10 percent rating, effective June 10, 2004. In January 2009, the RO increased the rating for left hip bursitis to 20 percent, effective November 26, 2008. In April 2009, the Board issued a decision denying initial increased ratings for left hip bursitis for the time periods prior to November 26, 2008 and since November 26, 2008. Then, in November 2009, the Board vacated that decision due to the receipt of VA records concerning the residuals of a left hip injury and found that in February 2005 the Veteran had raised the issue of TDIU because she asserted that she could not work due in part to her service-connected left hip disability. The Board had previously noted that when a TDIU due to a service-connected disability is raised in connection with an increased rating claim for that service-connected disability, the Board has jurisdiction over the issue of TDIU because it is part of the claim for increased compensation. Thus, the TDIU claim was added to the Veteran's appeal consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, in November 2009 the Board remanded both claims so the Veteran could receive a new VA examination. In a July 2011 rating decision, the RO increased the rating for left hip bursitis to 30 percent, effective January 16, 2010. In a November 2011 decision, the Board denied entitlement to an initial rating in excess of 10 percent for residuals of a left hip injury prior to November 26, 2008 and granted an initial 30 percent rating for residuals of a left hip injury, effective since November 26, 2008. The Board also remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, the claim for TDIU benefits to complete additional development. A December 2011 rating decision effectuated the Board's decision to grant a 30 percent rating since November 26, 2008. Meanwhile, in May 2011, the Veteran sought to reopen a previously denied claim of entitlement to service connection for major depressive disorder, which was previously claimed as adjustment disorder, secondary to her service-connected left hip disability. In a May 2013 rating decision, the AMC granted service connection for a mood disorder due to generalized medical condition as secondary to the service-connected left hip bursitis and assigned a 70 percent rating, effective May 9, 2011. In correspondence dated in July 2013, the Veteran's representative raised the issues of clear and unmistakable error (CUE) in a July 2004 rating decision that denied entitlement to service connection for gastroesophageal reflux disorder (GERD); CUE in an April 2005 rating decision that awarded nonservice-connected pension; service connection for back and knee problems, both claimed as secondary to the service-connected left hip disability; and reopening the previously denied claim of entitlement to service connection for endometriosis. These matters have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND As indicated in the introduction, the Veteran's representative has raised claims of service connection, including on a secondary basis, and the issue of clear and unmistakable error or CUE in two prior RO decisions. Regarding the claim of CUE in a July 2004 rating decision, the representative asserts that a digestive disability was incurred in service and that the March 2004 VA examiner believed that the Veteran had gastrointestinal problems secondary to NSAIDS for her service-connected hip and wrist. Regarding the claim of CUE in an April 2005 rating decision, the RO stated in the narrative of the rating decision that the evidence showed that the Veteran was disabled due to "disabilities of mood disorder due to general medical condition, chronic low back and lower left extremity pain of unclear etiology, left hip bursitis, right wrist tendonitis." The Veteran's representative asserts that the "rating decision itself states that the depression is due, at least in part, to the Veteran's already service connected hip and wrist." Accordingly, the representative believes that the RO erred in not granting service connection for a mood disorder, secondary to left hip bursitis and right wrist tendonitis, in the April 2005 rating decision. The AOJ has not adjudicated the claims of CUE and the Board is precluded from adjudicating those claims in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326, 333-34 (2006). The CUE issues are inextricably intertwined with the TDIU issue because if the July 2004 and/or April 2005 decisions contain CUE, they did not become final. See 38 C.F.R. § 3.105(a) (2012); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Moreover, a favorable decision with respect to either CUE claim could affect the outcome of the TDIU claim, including the determination of an effective date if the TDIU claim is granted. Finally, the claims of service connection could also impact the decision regarding a TDIU. Therefore, the Board must defer adjudication of the appeal for entitlement to a TDIU until the issues raised by the Veteran's representative in July 2013 are adjudicated. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall adjudicate the Veteran's claims of CUE in the July 2004 rating decision that denied service connection for GERD and in the April 2005 rating decision that granted nonservice-connected pension based in part on a mood disorder and service-connected left hip and right wrist disabilities, as well as the claims of secondary service connection for disability of the back and knees and the request to reopen the claim of service connection for endometriosis. These issues shall not be certified to the Board unless a sufficient substantive appeal is submitted. The issue of entitlement to TDIU should then be re-adjudicated. 2. If any benefit for which a sufficient substantive appeal has been submitted remains denied and additional relevant evidence is received, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ THOMAS J. DANNAHER 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).