Citation Nr: 1806088 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-23 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an effective date earlier than May 20, 2009 for the award of service connection for hearing loss. 2. Entitlement to an effective date earlier than May 20, 2009 for the award of service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to April 1981. These matters initially came before the Board of Veterans' Appeals (Board) from a January 2013 decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Atlanta, Georgia. In that decision, a Decision Review Officer awarded service connection for hearing loss and tinnitus, both effective from May 20, 2009. The Veteran timely appealed the assigned effective dates. In July 2013, the Board remanded these matters for issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). An SOC was issued in April 2014 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veteran's Appeals) in June 2014. The Veteran testified before a Veterans Law Judge (VLJ) at a July 2014 videoconference hearing at the RO. The Board subsequently sent the Veteran a letter in October 2014 which informed him that the Board was unable to produce a written transcript of the July 2014 hearing and asked him to indicate whether he wanted to attend a new hearing. He responded that he did not wish to attend a new Board hearing and that he wanted his case to be decided based on the evidence of record. In March 2015, the Board denied entitlement to earlier effective dates for the award of service connection for hearing loss and tinnitus. The agency of original jurisdiction (AOJ) nonetheless certified these issues to the Board in July 2016 (see a July 2016 "Certification of Appeal" form ( VA Form 8)) and the Veteran testified before the undersigned VLJ at an August 2017 videoconference hearing at the RO. A transcript of this hearing is associated with his file. As a final preliminary matter, the Board points out that the Veteran filed a timely notice of disagreement (NOD) with an August 2016 rating decision with respect to the denial of service connection for various disabilities. In a September 2016 letter, the AOJ acknowledged that the Veteran's NOD was received. Moreover, the Veterans Appeals Control and Locator System (VACOLS) shows that the AOJ has acknowledged receipt of the NOD and that additional action is pending. As such, this situation is distinguishable from that in Manlincon, 12 Vet. App. at 238, where an NOD had not been recognized. As the Veteran's NOD with the August 2016 rating decision has been acknowledged by the AOJ and further action is pending, the Board declines to remand the issues adjudicated in the August 2016 rating decision for issuance of an SOC. Rather, these issues may be the subject of a future Board decision, if necessary. FINDING OF FACT In March 2015, the Board denied entitlement to effective dates earlier than May 20, 2009 for the award of service connection for hearing loss and tinnitus; the Board's March 2015 decision is final and there are no other appeals pending before the Board at this time. CONCLUSION OF LAW The criteria for dismissal of an appeal by the Board are met. 38 U.S.C. § 7105 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As explained in the Introduction section above, the Veteran perfected an appeal as to the issues of entitlement to earlier effective dates for the award of service connection for hearing loss and tinnitus. In a March 2015 decision, however, the Board denied entitlement to earlier effective dates for the award of service connection for hearing loss and tinnitus. The Board's decision was final when issued. See 38 U.S.C. § 7104 (b) (2012); 38 C.F.R § 20.1100 (a) (2017) (a Board decision is final on the date stamped on the face of the decision). Thus, although the AOJ subsequently erroneously certified these earlier effective date issues to the Board in July 2016 and a Board hearing was held in August 2017, these issues are no longer before the Board and there remain no allegations of errors of fact or law for appellate consideration. The Board apologizes that the Veteran has erroneously been led to believe that these issues remain on appeal before the Board, but unfortunately the Board does not currently have jurisdiction to review the issues on appeal, and the appeal must be dismissed. As noted, Board decisions are final and it does not appear that the Veteran appealed the Board's March 2015 decision to the United States Court of Appeals for Veterans Claims (Court). See 38 U.S.C. § 7252(a) (2012) (giving the Court exclusive jurisdiction to review Board decisions). Moreover, the Veteran cannot file a "freestanding claim" for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Should the Veteran continue to disagree with the Board's denial of his claims for an earlier effective date, this decision does not preclude him from filing a motion alleging clear and unmistakable error (CUE) in the Board's March 2015 decision. See 38 C.F.R. § 20.1404 (2017). ORDER The appeal is dismissed. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs