Citation Nr: 18157159
Decision Date: 12/13/18	Archive Date: 12/11/18

DOCKET NO. 16-60 239
DATE:	December 13, 2018
REMANDED
Entitlement to an effective date prior to September 15, 2015, for the assignment of a separate 10 percent evaluation for old, inner left groin tear, adductor muscle group, to include whether there was clear and unmistakable error (CUE) in a September 2003 rating decision, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from August 1987 to June 1998 and in June 2006.
This matter comes to the Board of Veterans’ Appeals (Board) from a March 2016 rating decision which, in pertinent part, granted a separate compensable evaluation for old, left inner groin tear, adductor muscle group, effective September 15, 2015. 
Entitlement to an effective date prior to September 15, 2015, for the assignment of a separate 10 percent evaluation for old, inner left groin tear, adductor muscle group, to include whether there was CUE in a September 2003 rating decision, is remanded.
The Veteran contends that an earlier effective date is warranted for the grant of a separate compensable rating for old, inner left groin tear, adductor muscle group.  Specifically, the Veteran alleges that there was CUE in the September 2003 rating decision.  The Veteran contends that he filed claims for both his left knee and left groin in August 2002 and that he should have been granted separate ratings then.  He states that his left knee and left groin pain has not changed since 2002 and further contends that the June 2003 VA examination may have been inadequate. 
The Board finds that the Veteran’s CUE claim must be remanded for the AOJ to adjudicate the claim in the first instance.  A claimant’s assertion of a particular CUE theory by the RO constitutes a distinct claim.  See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006).  In the present case, the RO has not yet adjudicated the Veteran’s allegation of CUE.  Moreover, the Board cannot consider a CUE issue alleged in a rating decision in the first instance.  See Jarrell, 20 Vet. App. at 333 (2006).  Thus, the claim of CUE in the September 2003 rating decision is remanded for initial consideration by the AOJ.  
In addition, adjudication of the CUE claim could materially affect a determination of the earlier effective date claim for the grant of a separate compensable rating for old, inner left groin tear, adductor muscle group, and is thus inextricably intertwined with the CUE claim discussed above.  Thus, the claim is remanded and deferred until the adjudication of the CUE claim as discussed above.  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 matter is REMANDED for the following actions:
1. The RO should adjudicate whether CUE was shown in the September 2003 rating decision which granted the Veteran a single disability rating for his left knee and groin.
Thereafter, depending on the outcome of the CUE claim, readjudicate the intertwined earlier effective date claim for the grant of a separate compensable rating for old, inner left groin tear, adductor muscle group.
2. If the benefits sought are 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.
 
K. PARAKKAL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Owen, Associate Counsel