Citation Nr: 18156981 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 18-24 927 DATE: December 11, 2018 REMANDED Entitlement to an effective date prior to May 13, 2004, for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. The issue of whether there was clear and unmistakable evidence (CUE) in the May 2015 rating decision which assigned a May 13, 2004 effective date for the grants of service connection for leptomeningitis and headaches is remanded. Entitlement to a rating in excess of 30 percent for residuals of leptomeningitis with vertigo is remanded. REASONS FOR REMAND The Veteran had active service from February 1956 to March 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2015, July 2016 and May 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). On the May 2018 VA Form 9, the Veteran stated that the RO never issued a Statement of the Case (SOC) regarding his September 2015 Notice of Disagreement (NOD). However, after careful review of the claims folder, the Board finds that a SOC was issued. In a May 2015 rating decision, the Board granted the Veteran’s claim for entitlement to headaches and residuals of leptomeningitis and assigned 30 percent rating and 10 percent ratings respectively, effective May 13, 2004. In a September 2015 NOD, the Veteran disagreed with the effective date and ratings assigned. In a July 2016, the RO issued a SOC regarding the effective date and ratings assigned. The Veteran did not file a VA Form 9 (Substantive Appeal) within the requisite time period. Therefore, the Board finds that those issues have not been perfected to appeal. 1. Entitlement to an effective date prior to May 13, 2004, for the grant of a total disability rating based on individual unemployability (TDIU) and whether there was CUE in the May 2015 rating decision In July 2015, the Veteran filed a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). In a July 2016 rating decision, the granted the Veteran’s claim for entitlement to a TDIU, effective May 13, 2004. The RO assigned the May 13, 2004 effective date based on the first date the Veteran met the schedular criteria for this benefit. In June 2017, the Veteran filed a NOD with the effective date of the grant of TDIU. Specifically, the Veteran contends that there was clear and unmistakable evidence (CUE) regarding the May 2015 rating decision which assigned a May 13, 2004 effective date for the grants of service connection for leptomeningitis and headaches. The Veteran contends that he is entitled to a 2001 effective date for the grants of service connection for leptomeningitis and headaches. To wit, the Veteran contends that he should also be assigned a 2001 effective date for his claim for entitlement to a TDIU as his claims for leptomeningitis and headaches are the basis of his TDIU claim. See June 2017 Notice of Disagreement. As noted above, the Veteran did not perfect his appeal for his disagreement with the effective date for the grant of his service connection claims for leptomeningitis and headaches. An earlier effective date can only arise on appeal of a rating decision granting the disputed effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Once an adjudication assigning an effective date becomes final, the finality of the effective date may only be overcome by a request for revision based on an allegation of clear and unmistakable error (CUE) in the prior rating decision. Here, the Veteran asserted a claim for an earlier effective date based on CUE with the May 2015 rating decision. The RO issued a SOC regarding the claim for an earlier effective date, but did not address the Veteran’s CUE claim. Where a claimant files a notice of disagreement, and the RO has not issued a Statement of the Case (SOC), the issue must be remanded to the RO for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The Board further finds that the 2 claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The Veteran’s claim for entitlement to an earlier effective date for the grant of TDIU will be impacted by the adjudication of the CUE claim. Therefore, the Board remands the CUE matter for issuance of a SOC and remands the matter of entitlement to an earlier effective date pending adjudication of the CUE matter. 2. Entitlement to a rating in excess of 30 percent for residuals of leptomeningitis with vertigo is remanded. In July 2018, the Veteran filed a NOD with the May 2018 rating decision which increased the Veteran’s residuals of leptomeningitis to 30 percent, effective March 5, 2016. The RO has not issued a SOC in response to the NOD. See Manlincon v. West, supra. Therefore, the Board remands the matter for issuance of a SOC. The matter is REMANDED for the following action: 1. Issue a Statement of the Case that addresses the issues of whether there was CUE in the May 2015 rating decision which assigned a May 13, 2004 effective date for the grants of service connection for leptomeningitis and headaches (see June 2017 Notice of Disagreement) and entitlement to a rating in excess of 30 percent for residuals of leptomeningitis (The Veteran filed a NOD in July 2018 in response to the May 2018 rating decision). Inform the Veteran that he must perfect a timely appeal for those issues to be considered by the Board. If, and only if, the Veteran perfects the appeal, return the case to the Board. 2. After ensuring that the requested actions are completed, and undertaking any additional development action that is deemed warranted, adjudicate the claims on the merits, including the inextricably intertwined claim of entitlement to an earlier effective for the grant of TDIU. If the benefits sought are not fully granted, furnish the Veteran a supplemental statement of the case (SSOC), before the electronic claims file is returned to the Board, if otherwise in order. MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville