Citation Nr: 1518461	
Decision Date: 04/29/15    Archive Date: 05/05/15

DOCKET NO.  13-21 887A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a compensable rating for residuals of a fractured left ring finger.

2.  Entitlement to total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Robert E. P. Jones, Counsel




INTRODUCTION

The Veteran had active service from September 1981 to September 1984.

 This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas.

The issue of clear and unmistakable error (CUE) in a November 2009 rating decision that awarded the Veteran a noncompensable rating for residuals of fractured left ring finger has been raised by the record in a May 2012 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014). 

The appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.


REMAND

A review of record shows that the Veteran, in May 2012 and December 2012, asserted that there was CUE in a November 2009 rating decision that awarded service connection and a noncompensable rating for residuals of fractured left ring finger.  The Veteran maintains that due to CUE in that decision he was not awarded a compensable rating for his residuals of fracture of the left ring finger.  This CUE claim has not been adjudicated by the RO. 

In this case, the Board finds that the Veteran's current claim for a compensable rating for residuals of a fractured left ring finger is inextricably intertwined with the CUE claim.  Therefore, adjudication of the claim that is currently in appellate status must be deferred pending the adjudication of the CUE claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

An August 2014 rating decision denied the Veteran's claim for TDIU.  The Veteran's Virtual VA electronic file reveals that in September 2014 the Veteran submitted a notice of disagreement (NOD) with respect to the denial of TDIU.  As the Veteran asserts that he is unemployable as a result of the service-connected issue on appeal, TDIU is considered "part and parcel" of the underlying claim.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Although he Veteran filed a timely notice of disagreement as to the denial of TDIU, a statement of the case is not required as the issue is properly before the Board as part of the claim for an increased rating pursuant to Rice v. Shinseki.

Accordingly, the case is REMANDED for the following action:

1.  As noted above, the issue of entitlement to a compensable rating for residuals of a fractured left ring finger 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 the CUE assertion, then take any action deemed warranted with respect to the appellate issue.  Then, re-adjudicate the claim for a compensable rating for residuals of a fractured left ring finger, including entitlement to TDIU.  

2.  When the above has been accomplished furnish the Veteran and his representative a supplemental statement of the case for any claim for which the benefit sought on appeal is not granted.  The Veteran and his representative should be 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 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 2014).



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

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).