Citation Nr: 1803001 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 14-24 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an effective date earlier than May 11, 2011, for the grant of service connection for bilateral hearing loss, to include on the basis of CUE in a March 2007 rating decision. 2. Entitlement to an effective date earlier than May 11, 2011, for the grant of service connection for tinnitus, to include on the basis of CUE in a March 2007 rating decision. 3. Entitlement to an effective date earlier than May 11, 2011, for the grant of service connection for post-traumatic stress disorder (PTSD), to include on the basis of CUE in a March 2007 rating decision. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Monica Dermarkar, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland Oregon. In August 2011, the RO granted service connection for bilateral hearing loss, tinnitus, and PTSD and assigned an effective date of May 11, 2011. In October 2011, the Veteran filed a notice of disagreement claiming entitlement to an earlier effective date for his service-connected bilateral hearing loss, tinnitus, and PTSD. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2017. A copy of the hearing transcript is of record. The issues of whether there was clear and unmistakable error (CUE) in a March 2007 rating decision which denied service connection for bilateral hearing loss, tinnitus and PTSD have been raised by the record in a February 2017 statement at the Board hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran testified that on the date he was scheduled for a VA examination, there was a severe snow and ice storm in Portland, Oregon which prevented the Veteran from commuting to his scheduled appointment. See Board hearing transcript at 3. The Veteran was denied service connection for bilateral hearing loss, tinnitus, and PTSD in March 2007. The Veteran contends that he is entitled to an earlier effective date because he tried to reschedule his VA examination by leaving multiple voice messages stating he was unable to make his appointment due to bad weather, but was not contacted by the RO. Regarding the Veteran's claims for an earlier effective date for the grant of service connection for bilateral hearing loss, tinnitus, and PTSD, the issue of whether clear and unmistakable error (CUE) exists in a March 2007 rating decision was raised during the February 2017 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). That issue is, however, inextricably intertwined with the earlier effective date for the grant of service connection for bilateral hearing loss, tinnitus, and PTSD. If error was found, it would impact the finality of the March 2007 rating decision and could affect any decision made herein on the effective date. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the issue of whether the March 2007 rating decision contained CUE as regards denials of service connection for bilateral hearing loss, tinnitus, and PTSD. 2. Thereafter, readjudicate as appropriate the issue of entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss, tinnitus, and PTSD. To the extent the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond thereto. The matter should then be returned to the Board for further review, if in order. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).