Citation Nr: 1807912	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  17-16 391	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to an effective date prior to December 18, 2015 for the award of a total disability rating based on individual unemployability (TDIU), to include as a result of an alleged clear and unmistakable error (CUE) in a September 2013 rating decision.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Orie, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from May 1976 to May 1979.

This matter comes before the Board of Veterans' Appeals on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana (Agency of Original Jurisdiction (AOJ)).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

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


REMAND

In a February 2016 rating decision, the AOJ granted the Veteran's claim for TDIU, and assigned an effective date of December 18, 2015.  The Veteran disagreed with the assigned effective date and timely appealed.  In subsequent correspondence, the Veteran continued to disagree with the effective date assigned, stating that the effective date should be in 2012, the date he filed a claim for TDIU.  In the January 2018 Appellate Brief, the Veteran, through his representative, argued that a September 2013 rating decision, which originally denied his claim, was based on CUE.  

The claim of CUE and the claim for an earlier effective date are inextricably intertwined, in that if CUE were found, the earlier effective date claim (which presumes finality) may be legally moot.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); see also Crippen v. Brown, 9 Vet. App. 413, 420 (1996) (appellant reasonably raised claim for CUE with the requisite specificity because he argued for an earlier effective date asserting that evidence compelling a grant of service connection was of record at the time of the prior final rating decisions).  The AOJ should reconsider the earlier effective date issue with consideration of the CUE issue regarding the September 2013 rating decision.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

Furnish the Veteran with a Supplemental Statement of the Case, addressing the CUE claim regarding the April 2008 rating decision raised in the January 2018 Appellate Brief.  Thereafter, the Veteran should be given an opportunity to submit a response. Return the claims to the Board for appellate consideration, if necessary.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  See 38 U.S.C. §§ 5109B, 7112 (2012).




_________________________________________________
T. MAINELLI 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).