Citation Nr: 1119118 Decision Date: 05/18/11 Archive Date: 05/26/11 DOCKET NO. 08-28 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date earlier than October 29, 2004 for the grant of service connection for bilateral hearing loss, to include whether there was clear and unmistakable error (CUE) in a March 1990 rating decision that denied service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his brother, J. M. ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran served on active duty from June 1947 to November 1948. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Within one year of this decision, the Veteran expressed disagreement with the effective date assigned for the award of service connection for bilateral hearing loss. In March 2011, the Veteran and his brother presented testimony at a hearing before the undersigned Veterans Law Judge at the RO (Travel Board hearing). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In March 1990, February 2000, and December 2001 rating decisions, the RO denied the Veteran's original claim for service connection for bilateral hearing loss, as well as his latter claims to reopen. The Veteran did not appeal any of these rating decisions within one year. Therefore, the March 1990, February 2000, and December 2001 rating decisions appear to be final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2010). Accordingly, they are only subject to reversal or amendment if they contain CUE. 38 C.F.R. § 3.105(a). The RO reopened the Veteran's bilateral hearing loss claim and granted service connection in the March 2006 rating decision on appeal. The RO established an effective date of October 29, 2004, the date of receipt of his claim to reopen. See 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). The grant of service connection was based on a January 2006 VA audiology examination which diagnosed the Veteran with bilateral hearing loss related to in-service acoustic trauma from tank fire, transport equipment, and major head trauma in the late 1940s. As such, in the absence of CUE, the RO assigned the earliest possible effective date for its grant of the reopened claim. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). The Veteran filed a March 2007 Notice of Disagreement (on a VA Form 9) with the effective date assigned. The appeal has now reached the Board. However, before addressing the merits of the effective date issue on appeal, the Board finds that additional development of the evidence is required. First, in the present case, the Veteran has also filed a motion for CUE, which is inextricably intertwined with the earlier effective date issue on appeal. Specifically, the Veteran has claimed that the RO committed CUE in an earlier March 1990 rating decision by not providing him at that time with a VA examination to address the etiology of his bilateral hearing loss. See August 2008 VA Form 9; March 2011 hearing testimony at pages 11-12. If such a VA examination had been provided in 1990, the Veteran believes he would have been granted service connection at that time. Regardless, the RO has not properly adjudicated the issue of whether there was CUE in the March 1990 rating decision. The Board emphasizes that the March 1990 rating decision is final unless CUE is established with respect to that decision. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2010). That is, if VA determines that the March 1990 rating decision contains CUE, that decision would no longer be final, and it will be reversed or amended. For the purposes of authorizing benefits, the decision that constitutes a reversal of the prior decision on the grounds of CUE would have the same effect as if the correct decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). Thus, if VA determines that the March 1990 rating decision contains CUE, an earlier effective date could be assigned as if there were no such determination. The Veteran's CUE challenge to the March 1990 rating decision is thus inextricably intertwined with his effective date claim, because finality presumes the absence of CUE, i.e., if a prior adjudication contains CUE, it did not become final. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, a favorable determination on the CUE claim could significantly impact the outcome of the claim for an earlier effective date now on appeal. Some claims are so intimately connected that they should not be subject to piecemeal decision-making or appellate litigation. See Smith v. Gober, 236 F.3d 1370 (Fed. Cir. 2001); Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the Board finds it necessary to defer consideration of the currently perfected earlier effective date claim until the RO adjudicates, in the first instance, the Veteran's CUE challenge. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc); Huston v. Principi, 18 Vet. App. 395, 402-03 (2004). Second, during the course of the appeal, it appears the Veteran may have asserted that there is also CUE in the RO's earlier February 2000 and December 2001 rating decisions. See e.g., March 2005 Veteran statement. On remand, the RO should clarify if the Veteran is also asserting CUE in the RO's February 2000 and December 2001 rating decisions. In this respect, each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell 20 Vet. App. at 332-33. The Veteran must also allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104, 114 (2003). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and clarify if he is also alleging CUE in the RO's February 2000 and December 2001 rating decisions. See e.g., March 2005 Veteran statement discussing VA's failure to consider lay evidence in these latter rating decisions. 2. Then, adjudicate the issue of clear and unmistakable error in the RO's March 1990 rating decision that denied service connection for bilateral hearing loss. Also adjudicate the issue of clear and unmistakable error in the RO's February 2000 and December 2001 rating decisions, only if the Veteran clarifies that he is actually asserting CUE in these particular rating decisions. 3. Then, adjudicate the issue of an effective date earlier than October 29, 2004 for the grant of service connection for bilateral hearing loss. 4. If the benefit sought on appeal is not granted, issue a supplemental statement of the case for each issue and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).