Citation Nr: 19150698 Decision Date: 07/02/19 Archive Date: 06/28/19 DOCKET NO. 18-38 046 DATE: July 2, 2019 REMANDED Entitlement to an increased rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REFERRED The issue of whether revision of a September 2015 rating decision, which reduced the Veteran’s rating for a lumbar spine disability from 40 percent to 10 percent, is warranted on the basis of clear and unmistakable error (CUE) was raised in a July 2018 formal claim and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS FOR REMAND The Veteran served on active duty from March 1986 to April 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, a September 2015 rating decision reduced the Veteran’s rating for his lumbar spine disability from 40 percent to 10 percent, effective December 1, 2015. The decision also severed service connection for the Veteran’s left lower extremity radiculopathy and a surgical scar. On December 11, 2015, the Veteran filed a claim for an increased rating for his low back disability, which was denied in the March 2016 rating decision on appeal. The Veteran filed a notice of disagreement with that denial in April 2016, specifically identifying the March 2016 rating decision and stating that he was appealing the evaluation of the disability. The record does not reflect that the Veteran ever filed a notice of disagreement with the September 2015 rating decision concerning the rating reduction or the severances of service connection. In November 2016 correspondence, the Veteran’s representative alleged that the RO had committed CUE in the September 2015 rating decision that reduced the Veteran’s lumbar spine rating and severed service connection for radiculopathy and the scar. In July 2018 correspondence, the Veteran submitted a formal claim form which simply stated he was asserting CUE in the September 2015 rating decision. The RO issued a rating decision in August 2018, but only addressed allegations of CUE in the severances of service connection for radiculopathy and the scar. The Veteran filed a notice of disagreement in September 2018, which was acknowledged in October 2018 correspondence. As to date the RO has not adjudicated the Veteran’s assertion that CUE was committed in the reduction of his low back disability from 40 percent to 10 percent, the Board has referred that claim to the AOJ for adjudication. As the assertion of CUE is with respect to a rating decision and not a Board decision, the Board may not take initial jurisdiction over the issue and decide it in the first instance. Andre v. Prinicipi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332–33 (2006). Instead, the issue may only be referred for initial adjudication by the AOJ, which the Veteran may the appeal to the Board as necessary. Further, as the notice of disagreement as to the September 2018 rating decision which did not find CUE in the severance of service connection of the radiculopathy and scar has been acknowledged and is being processed by the RO, the Board declines to take jurisdiction over these issues at this time. 38 U.S.C. § 7105; 38 C.F.R. § 19.26; see Manlincon v. West, 12 Vet. App. 238 (1999). 1. Entitlement to an increased rating for a lumbar spine disability. As noted in the introduction, the Veteran, through his representative, has alleged that CUE was committed in the September 2015 rating decision that reduced the Veteran’s rating for his lumbar spine disability from 40 percent to 10 percent, which has not yet been adjudicated by the RO. As the outcome of the pending allegation of CUE would potentially materially affect the increased rating claim currently on appeal, in that it may result in an increase in the Veteran’s currently assigned rating during the period on appeal, the increased rating claim must be remanded pending resolution of the CUE allegation. 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). 2. Entitlement to TDIU. The Veteran has raised entitlement to TDIU during the pendency of the appeal regarding the rating of his lumbar spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Remand is required because entitlement to TDIU is inextricably intertwined with the pending increased rating claim for the lumbar spine disability, which is also being remanded herein. See Harris, 1 Vet. App. 180 (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). The matter is REMANDED for the following action: After adjudicating the issue of whether revision of a September 2015 rating decision which reduced the Veteran’s rating for a lumbar spine disability from 40 percent to 10 percent is warranted on the basis of clear and unmistakable error (CUE), readjudicate the issue of entitlement to an increased rating for a lumbar spine disability and TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded the applicable time period to respond. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.