Citation Nr: 19106913
Decision Date: 01/29/19	Archive Date: 01/29/19

DOCKET NO. 15-40 498
DATE:	January 29, 2019

REMANDED

Entitlement to an effective date earlier than September 6, 2013, for the grant for service connection and assignment of separate ratings for the back and left lower extremity radiculopathy is remanded.

REASONS FOR REMAND

At an August 2018 hearing before the undersigned, it was clarified that the Veteran’s claim for an earlier effective date is predicated, in part, on an assertion that the May 1990 rating decision that denied service connection for a back disability contained clear and unmistakable error (CUE). 

The issue of whether there was CUE in the May 1990 rating decision has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Further, the issue of CUE is inextricably intertwined with the earlier effective date issue.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  The Board cannot consider the CUE issue in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326 (2006).  Thus, the claim must be remanded for the AOJ to adjudicate the CUE.

 

The matter is REMANDED for the following action:

1. Provide the Veteran and his representative an opportunity to submit additional argument regarding the CUE claim. 

2. Thereafter, adjudicate whether there was CUE in the May 1990 rating decision that denied service connection for a back disability.

3. After the above development, and any additionally indicated development, has been completed, readjudicate the claims for an effective date earlier than September 6, 2013 for the grant of service connection for the back and left lower extremity disabilities.

 

M.E. Larkin

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	Eric Struening, Associate Counsel