Citation Nr: 1327416	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  12-33 773A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an effective date prior to November 30, 2011, for the grant of service connection for tinnitus.

2.  Entitlement to an effective date prior to November 30, 2011, for the grant of service connection for hearing loss.

3.  Whether a December 1986 rating decision was clearly and unmistakably erroneous.


REPRESENTATION

Appellant represented by:	Katrina J. Eagle, Attorney at Law


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel
REMAND

The Veteran served on active duty from January 1951 to August 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for bilateral hearing loss and tinnitus.  (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).)

While the Veteran's appeal was pending, his attorney filed an argument asserting clear and unmistakable error (CUE) in a December 1986 rating decision, which denied service connection for hearing loss.  See statement of the Veteran's attorney dated February 2013.  The issue of CUE in the December 1986 rating decision has not been adjudicated by the RO.  Notably, remand of this issue for initial development and adjudication is consistent with the Federal Circuit's recent observation in Smith v. Shinseki, 647 F.3d 1380 (Fed. Cir. 2011) that no law or regulation precludes VA from providing additional assistance in developing a claim when it is deemed appropriate.  See 38 U.S.C.A. § 5103A(g) (West 2002); see also Savage v. Shinseki, 24 Vet. App. 259, 268-71 (2011).  Thus, the Board may properly order initial adjudication of the Veteran's CUE claim.

Here, adjudication of the Veteran's CUE claim may obviously impact the Veteran's pending claims of entitlement to earlier effective dates for the grant of service connection for hearing loss and tinnitus.  In particular, the Veteran's attorney asserted CUE in the December 1986 rating decision as a theory of entitlement with respect to both earlier effective date claims on appeal.  See statement of the Veteran's attorney dated February 2013.  Accordingly, the Board is remanding the claims of entitlement to earlier effective dates for the grant of service connection for hearing loss and tinnitus in the interest of fairness to the Veteran and efficient usage of VA resources.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.) aff'd., 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (U.S. Oct. 3, 2011).

Accordingly, the case is REMANDED to the RO for the following action:

1. Adjudicate the Veteran's claim of CUE in a December 1986 rating decision, which denied service connection for hearing loss.

2. Thereafter, reconsider the Veteran's claims of entitlement to earlier effective dates, prior to November 30, 2011, for the grant of service connection for hearing loss and tinnitus.  If any benefit sought remains denied, the Veteran and his attorney should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board.  (The supplemental statement of the case should address the law and regulations, and analysis by the RO on the CUE question.)

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (the Court) for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).


________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court.  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) (2012).