BVA Case 17-3439: Back

155 (2017): 2 (1)entitlement to a total disability rating based on 1 There is no dispute between the parties that, when the Board determined that no further action is necessary,.

In October 2015,the Board denied initial disability ratings in excess of 50%and 40%, respectively,for right and left hand arm vibration syndrome on schedular and extraschedular bases and found that the issue of entitlement to TDIU prior to March 4,2005,had not been raised by the record because the appellant did not appeal the effective date assigned in the April 2005 rating decision that granted TDIU.

On September 26,2017,the Board denied higher initial disability ratings for the appellant's upper extremity disabilities and determined that the issues of entitlement to SMC(k)and TDIU prior to March 4,2005,were not before it.

As explained below,the Board erred when it determined that it lacked jurisdiction over entitlement to SMC(k).

However,the Board determined that the issue of entitlement to SMC(k)was not before it because the appellant did not file a formal new claim[] for this benefit.

The Board found that,pursuant to the instructions in its December 2016 decision,the RO mailed to the appellant the standard form required to file a formal claim;and, although he raised the same argument for entitlement to SMC(k) in his April 2017 brief to the Board, see R.

Thus,the Board concluded that the [appellant]has not formally filed new claims for benefits,and no further action is necessary by the Board with respect to the claims previously referred or any claims not formally filed since that time, including the matter of entitlement to SMC(k)for loss of use of a creative organ.

155 Having determined that section 1114(k)does not preclude a theory of entitlement to SMC(k)as a potentially ancillary benefit to the appellant's service-connected upper extremity claims,the Court must assess whether the Board erred when it determined that the issue of SMC(k) was not before it because the appellant did not file a formal claim for SMC(k) pursuant to the post-2014 version of 3.