Citation Nr: 21007919 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-30 899 DATE: February 11, 2021 REMANDED Issue of entitlement to an increased rating for residuals of shell fragment wounds (SFW) of the right thigh and hip area with retained foreign bodies and involvement of Muscle Groups XV and XVII, currently rated at 40 percent prior to January 21, 2014, and 50 percent thereafter, is remanded. Issue of entitlement to an effective date earlier than January 21, 2014, for an evaluation of 50 percent for residuals of SFW of the right thigh and hip area with retained foreign bodies and involvement of Muscle Groups XV and XVII is remanded. Issue of entitlement to separate rating for residuals of SFW of the right thigh and hip area with retained foreign bodies and involvement of Muscle Groups XV and XVII is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to December 1968. The Board notes that the Veteran has the distinction of a Purple Heart Medal. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2011 rating decision issued by the Department of Veterans Affairs (VA). See January 2012 Notice of Disagreement (NOD); August 2014 Statement of the Case (SOC); August 2014 Substantive Appeal (VA Form 9). During the pendency of the appeal, the Veteran was awarded a partial grant of benefits sought with an increased rating of 50 percent for his residuals of SFW of the right thigh and hip area with retained foreign bodies and involvement of Muscle Groups XV and XVII, effective January 24, 2012. August 2014 Rating decision. The Veteran requested a hearing before the Board and a hearing was scheduled for October 2017, but the Veteran failed to appear. See August 2014 VA Form 9; September 2017 Correspondence; October 2017 Correspondence. As the Veteran has provided no explanation as to why he failed to appear nor requested another hearing, the Board deems his request for a hearing to be withdrawn. In January 2019, the Board remanded the claims as intertwined with the referred issue of clear and unmistakable error (CUE) in a prior rating decision, which was raised by the August 2016 VA Form 646. See January 2019 Board decision. The Agency of Original Jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC) on the issue of CUE. August 2020 SSOC. The claims are now back before the Board. The Board notes that the issues of entitlement to an increased rating for residuals of SFW of the right thigh and hip area with retained foreign bodies and involvement of Muscle Groups XV and XVII for the period on appeal and the issue of entitlement to an effective date earlier than January 21, 2014, for the 50 percent are essentially the same issue. The Veteran currently has a staged rating for his residuals of SFW of the right thigh and hip area with retained foreign bodies and involvement of Muscle Groups XV and XVII. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Issue of entitlement to an increased rating for residuals of SFW of the right thigh and hip area with retained foreign bodies and involvement of Muscle Groups XV and XVII is remanded. 2. Issue of entitlement to an effective date earlier than January 21, 2014, for an evaluation of 50 percent for residuals of SFW of the right thigh and hip area with retained foreign bodies and involvement of Muscle Groups XV and XVII is remanded. 3. Issue of entitlement to separate rating for residuals of SFW of the right thigh and hip area with retained foreign bodies and involvement of Muscle Groups XV and XVII is remanded. Unfortunately, the Board finds that an additional remand is necessary before above claims can be adjudicated. The January 2019 Board decision found that the claims on appeal are inextricably intertwined with a CUE claim raised by the Veteran. The CUE claim was referred to the AOJ for appropriate action. Id. The AOJ then issued an August 2020 SSOC regarding CUE. However, the SSOC discussed whether there was a CUE in the June 2011 and August 2014 rating decisions on appeal. See August 2020 SSOC. As those rating decisions are on appeal, they are not final and, thus, not subject to a claim of CUE. Instead, the Board finds that the AOJ should determine whether there is CUE in the January 2010 rating decision, which is the most recent final prior decision on the issue of entitlement to an increased rating for the Veteran’s residuals of SFW of the right thigh and hip area with retained foreign bodies and involvement of Muscle Groups XV and XVII. The Board apologizes for the confusion and delay in adjudicating the above claims. The matters are REMANDED for the following action: 1. After the issue of CUE in the January 2010 rating decision has been adjudicated (and the Veteran notified of that decision), arrange for any further development if deemed warranted by the AOJ. If the Veteran’s CUE claim is denied and he perfects a timely appeal to the Board, the claim should be associated with the current claims on appeal. 2. Re-adjudicate the claims above. If a claim is denied, supply the Veteran and his representative with a SSOC and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.