Citation Nr: 21068002
Decision Date: 11/08/21	Archive Date: 11/08/21

DOCKET NO. 18-29 070
DATE: November 8, 2021

REMANDED

The claim of entitlement to a 10 percent disability rating under 38 C.F.R. § 3.324 prior to February 9, 2015, for multiple noncompensable service-connected disabilities, is remanded. 

REASONS FOR REMAND

The Veteran served on active duty from April 1985 to March 1995.

This matter comes to the Board of Veterans' Appeals (Board) on appeal of an October 2015 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO).  In relevant part, the RO granted two separate 10 percent ratings for eye and right ankle disabilities effective the date of claim on February 9, 2015.

In June 2021, the Veteran testified in a hearing before the Board.  A transcript of the hearing is included in the electronic claims file and has been reviewed.

A remand is required because the claim on appeal is intertwined with an unadjudicated claim asserted by the Veteran.  

In statements of record dated in December 2013, May 2018, and June 2021, the Veteran asserted that the RO committed a clear and unmistakable error (CUE) in an unappealed March 1996 rating decision.  In the decision, the RO awarded service connection for several noncompensable disabilities.  The RO also denied a claim of entitlement to a 10 percent rating under 38 C.F.R. § 3.324.

The Veteran asserts that the RO committed CUE in that decision by not granting a 10 percent rating for the multiple disabilities.  

A decision regarding the CUE claim could impact the Board's decision here so the Board will suspend its decision until the CUE claim has been finally resolved.   See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001).

Parenthetically, VA has recognized the American Legion as the Veteran's representative since 2009.  Most recently, the American Legion represented the Veteran before the Board in the June 2021 hearing.  As noted by the representative in October 2021, an executed VA Form 21-22 is not of record.  The RO should ensure that a copy of the form is included in the claims file.   

The matter is REMANDED for the following action:

Readjudicate the claim of entitlement to a 10 percent rating under 38 C.F.R. § 3.324 prior to February 9, 2015  once the motion for CUE has been finally decided.  Then, if warranted, return the claim on appeal to the Board. 

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Christopher McEntee

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.