Citation Nr: 18157190
Decision Date: 12/13/18	Archive Date: 12/11/18

DOCKET NO. 17-19 979
DATE:	December 13, 2018
REMANDED
Entitlement to enhanced dependency and indemnity compensation (DIC) benefits, under 38 U.S.C. § 1311(a)(2), is remanded.

REFERRED
The issue of whether there was clear and unmistakable error (CUE) in an April 2008 rating decision that awarded a 100 percent rating for the Veteran’s service-connected Lyme disease, effective October 14, 2005, is referred to the Agency of Original Jurisdiction (AOJ) for adjudication.  This issue was raised in a July 2016 statement, in which the appellant asserted that the award should have been granted effective from at least June 2005.
REASONS FOR REMAND
The Veteran served on active duty from May 1980 to April 1984.  The Veteran died in September 2013, and the appellant is his surviving spouse.

1. Entitlement to enhanced DIC benefits under 38 U.S.C. 1311(a)(2).
A November 2015 rating decision awarded DIC benefits to the appellant as the surviving spouse, based on her claim for service connection for the cause of the Veteran’s death.  The appellant contends she should be entitled to enhanced DIC benefits under 38 U.S.C. § 1311(a)(2).  The basic monthly rate of DIC shall be increased by the amount specified in 38 U.S.C. 1311(a)(2) if the veteran, at the time of death, was receiving, or was entitled to receive, compensation for service-connected disability that was rated as totally disabling for a continuous period of at least eight years immediately preceding death.  38 C.F.R. § 3.10(c).  As noted above, in a July 2016 letter, the appellant contended there was CUE in an April 2008 rating decision issued during the Veteran’s lifetime and that, but for CUE, the Veteran would have been rated at 100 percent for at least eight years prior to his death.  The AOJ has yet to adjudicate the CUE claim. The Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the AOJ in the first instance.  Therefore, the Board lacks jurisdiction over the issue, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b).
The Board notes that the appellant’s claim for entitlement to enhanced DIC benefits is inextricably intertwined with the CUE claim, and it would be premature and prejudicial to consider it prior to adjudication of the CUE claim.  Thus, adjudication of the enhanced DIC benefits claim must be deferred pending adjudication of the CUE claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991).
The matter is REMANDED for the following action:
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After the matter of whether there was CUE in the April 2008 rating decision has been adjudicated (and the appellant notified of that decision), re-adjudicate the appellant’s claim for enhanced DIC benefits, under 38 U.S.C. § 1311(a)(2).
 
A. ISHIZAWAR
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Casula, Counsel