Citation Nr: 22047713
Decision Date: 08/22/22	Archive Date: 08/22/22

DOCKET NO. 11-13 862
DATE: August 22, 2022

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 19, 2019, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from February 1968 to January 1972.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

This case was most recently before the Board in February 2022. Regrettably, a remand is again required, because the claim on appeal is intertwined with an unadjudicated claim asserted by the Veteran through his representative.

Specifically, in an October 2020 Written Brief Presentation, the Veteran's representative asserted that the RO committed a clear and unmistakable error (CUE) in an August 2017 rating decision. In the decision, the RO awarded service connection for radiculopathy of the femoral and sciatic nerve for the lower extremities and assigned a 10 percent rating for each. The representative asserts that the RO committed CUE in that decision by not granting a 20 percent rating for each of the disabilities, which they state was clearly shown by examination findings consistent with a 20 percent rating, and that such error, considering the bilateral factor when combined with the Veteran's service-connected lumbar spine disorder, impacts when the Veteran meets the schedular criteria for TDIU.

As a decision regarding the CUE claim could impact the Board's decision here, the Board will suspend its adjudication until the CUE claim has been adjudicated by the RO. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001).

The matter is REMANDED for the following action:

1. Adjudicate the reasonably raised CUE claim concerning an August 14, 2017, rating decision with respect to the ratings assigned for the Veteran's service-connected femoral and sciatic nerve radiculopathy of the lower extremities.

2. Readjudicate the appeal.

 

 

JOHN G. SETTER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.Z., Counsel

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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.