Citation Nr: 1806918 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-10 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date prior to August 19, 2011, for the award of service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to May 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for tinnitus. The Veteran testified before the undersigned Veterans Law Judge at a May 2017 video conference hearing. A transcript of the hearing is of record. The Board notes that at the May 2017 hearing, the Veteran's representative asserted that there was clear and unmistakable error (CUE) in a September 1999 rating decision that denied the Veteran's claim for service connection for tinnitus. The Board is unable to take original jurisdiction of the Veteran's CUE motion as the assertion of CUE in the September 1999 rating decision has not yet been addressed by the Agency of Original Jurisdiction (AOJ). The issue of whether there is CUE in the September 1999 rating decision has been raised by the record in May 2017 hearing testimony, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND At the May 2017 hearing, the Veteran's representative clarified that the Veteran's claim for an earlier effective date for the grant of service connection for tinnitus is predicated, in part, on an assertion of CUE in the September 1999 rating decision that denied the Veteran's claim for service connection for tinnitus. Although the March 2014 statement of the case discussed the Veteran's allegation in his April 2013 notice of disagreement that the AOJ had the necessary evidence in September 1999 to grant his claim of service connection for tinnitus, the AOJ did not specifically adjudicate the issue of whether there was CUE in the September 1999 rating decision. The Board lacks jurisdiction over any theory of CUE in a rating decision that has not been adjudicated by the AOJ in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326 (2006). The raised issue of CUE in the September 1999 rating decision is inextricably intertwined with the pending claim asserting entitlement to an earlier effective date, as a favorable disposition in regard to the CUE claim directly impacts whether there remains a case or issue in controversy before the Board. Harris v. Derwinski, 1 Vet. App. 180 (1991). It would be premature and prejudicial to consider the earlier effective date claim prior to adjudication of the CUE claim. Therefore, the appeal must be remanded for the AOJ to adjudicate the issue of CUE in the September 1999 rating decision. Accordingly, the case is REMANDED for the following actions: 1. Adjudicate the issue of whether there is CUE in the September 1999 rating decision denying the Veteran's claim for service connection for tinnitus (referred in the Introduction). 2. If the issue of whether CUE in the September 1999 rating decision is denied, provide the Veteran and his representative with notice of his appellate rights. Upon receipt of any timely notice of disagreement, furnish the Veteran and his representative a statement of the case with citation to and discussion of all applicable law and regulations clearly setting forth the reasons for the decision. If and only if the Veteran thereafter files a timely substantive appeal concerning the CUE issue, certify the issue for appellate review. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's earlier effective date claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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) (2017).