Citation Nr: 18144225
Decision Date: 10/24/18	Archive Date: 10/24/18

DOCKET NO. 16-12 399
DATE:	October 24, 2018
REMANDED
Entitlement to an increased rating of 20 percent for residuals effects, partial head resection, second metatarsal left foot, prior to November 22, 2010, to include whether there was clear and unmistakable error (CUE) in the July 2013 rating decision is remanded.
Entitlement to an increased rating in excess of 10 percent, for sinusitis, prior to November 15, 2010, to include whether there was CUE in a July 2011 rating decision is remanded.
Entitlement to an initial rating of 20 percent for sensory peripheral neuropathy, left lower extremity, prior to November 15, 2010, to include whether there was CUE in a July 2011 rating decision is remanded.
Entitlement to an initial rating of 20 percent for sensory peripheral neuropathy, right lower extremity, prior to November 15, 2010, to include whether there was CUE in a July 2011 rating decision is remanded.
Entitlement to a total disability rating for compensation based on individual unemployability (TDIU), prior to November 15, 2010, to include whether there was CUE in a July 2011 rating decision is remanded.
REASONS FOR REMAND
The Veteran had active service from September 1977 to September 1981, April 1983 to April 1987, and October 1989 until November 1993. 
These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO).
In the March 2016 VA Form, the Veteran’s representative asserted that the Veteran is satisfied with his current disability ratings; however, contends that the Veteran seeks an earlier effective date, prior to November 15, 2010 for the claims on appeal. Additionally, the Veteran’s representative asserts that there is clear and unmistakable error regarding the July 2011 rating decision. Specifically, the Veteran asserts that there are medical records reflecting the Veteran with a bilateral lower extremity disability prior to November 15, 2010. Further, it is contended that the Veteran was unemployable due to his service connected disabilities prior to November 15, 2010.
The issues on appeal, should be revised based on clear and unmistakable error (CUE) have been raised by the record in a March 9, 2016 correspondence, 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).
The Board has considered the question of whether the Veteran would be prejudiced by considering the appeal for TDIU, prior to November 10, 2015, while remanding the other issues on appeal. Specifically, the Board questions whether the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 
As the outcome of the claims being remanded could have a significant impact on the Veteran's appeal for entitlement to TDIU, the Board finds the matters inextricably intertwined. The Board also notes that an undecided issue "inextricably intertwined" with an issue certified for appeal must be adjudicated prior to appellate review. Thus, the issue for entitlement to TDIU prior to November 15, 2010 must be remanded. 
The matters are REMANDED for the following action:
After completion of all necessary development, adjudicate whether the issues on appeal, should be revised based on clear and unmistakable error (CUE)  . If the benefits sought on appeal remain denied, furnish the Veteran and his representative a supplemental statement of the case, and afford them the opportunity to respond before the claims file is returned to the Board for further appellate consideration.

 
M. H. HAWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Brandon A. Williams, Counsel