Citation Nr: 1546363	
Decision Date: 11/02/15    Archive Date: 11/10/15

DOCKET NO.  11-18 429	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an effective date prior to April 30, 2010, for the grant of service connection for tinnitus due to the Veteran's service-connected head injury, to include consideration of whether there was clear and unmistakable error in a March 2006 rating decision that denied service connection for tinnitus.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel




INTRODUCTION

The Veteran had active military service from June 1973 to June 1977 and October 1980 to June 1989, with additional active service for a total of 15 years, 8 months, and 6 days of active service, and additional service in the reserves.

This matter comes to the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted service connection for tinnitus, assigning a 10 percent rating, effective April 30, 2010.  

This case was previously before the Board in August 2014, at which point the claim was remanded for additional development, including for the RO to address whether there was clear and unmistakable error in a March 2006 RO decision that had denied service connection for tinnitus.  The directives of the remand having been accomplished, the case is now returned for appellate review.

During the course of the appeal, in a December 2014 rating decision, the RO found that there was clear and unmistakable error in the evaluation for PTSD and assigned a 30 percent rating, effective November 7, 1996, and a 70 percent rating, effective August 4, 2010.  The Veteran's wife submitted a statement in August 2010, essentially arguing that the 70 percent rating should have been assigned effective November 7, 1996.  The Board does not have jurisdiction over this matter so it is referred to the RO for all appropriate action to include whether this letter constitutes a proper notice of disagreement.  See e.g., 38 C.F.R. § 20.201 (2015) (A notice of disagreement is a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result.).  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In April 2015, the Veteran appointed the California Department of Veterans Affairs as his representative.  The claims folder does not contain a VA Form 646 or equivalent from the California Department of Veterans Affairs.  See 38 C.F.R. § 20.600 (2015) (stating that "[a]n appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person").  The California Department of Veterans Affairs does not have an office at the Board in Washington.  Consequently, the Board finds that a remand is necessary to afford the Veteran's new representative at the RO an opportunity to review the file and submit a VA Form 646 or any other desired presentation in support of the Veteran.

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran's representative, the California Department of Veterans Affairs, the opportunity to review the claims file and to submit a VA Form 646 or equivalent on the Veteran's behalf. 

2.  Thereafter, take any action deemed appropriate and then return the case to the Board.

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







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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 2014).



_________________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).