Citation Nr: 21071596 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-66 080 DATE: November 30, 2021 REMANDED The claim of entitlement to an effective date prior to February 28, 2017 for a grant of service connection for bilateral hearing loss is remanded. The claim of entitlement to an effective date prior to February 28, 2017 for a grant of service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1959 to March 1963. His claims originate from a June 2017 rating decision, in which the Agency of Original Jurisdiction (AOJ) granted him service connection for bilateral hearing loss and tinnitus, effective from April 3, 2017. The Veteran testified in support of these claims during a hearing held at the AOJ before the Board in October 2018. In February 2019, the Board granted the Veteran an earlier effective date of February 28, 2017 for these grants of service connection. The Veteran then appealed the Board's decision to the United States Court of Appeals For Veterans Claims (Court), seeking an effective date prior to February 28, 2017. In March 2020, based on a Joint Motion For Remand (JMR), the Court remanded the matter for action consistent with the JMR. The Board in turn remanded the matter to the AOJ for action in September 2020. Entitlement to an effective date prior to February 28, 2017 for a grant of service connection for bilateral hearing loss Entitlement to an effective date prior to February 28, 2017 for a grant of service connection for tinnitus The Veteran seeks an effective date of September 12, 2014 for grants of service connection for bilateral hearing loss and tinnitus on the basis that this is when he initially filed a claim for these benefits. He acknowledges being denied these claims in February 2015 and asserts that after he initiated an appeal of the denial by filing a notice of disagreement, neither he, nor his representative, received a statement of the case in response. He asserts that, once he realized this, and after checking with his representative on the status of the claim, he submitted a VA Form 9, now deemed untimely. He blames the non-receipt of the statement of the case on a mailing error and argues that he should not be penalized for something that was completely out of his control. During the course of this appeal, the Veteran requested VA to research its mailing procedures and provide him proof that the November 2016 statement of the case was mailed to him pursuant to FOIA. VA never responded to this request, and in the March 2020 JMR, the parties agreed that, in its February 2019 decision, the Board did not address this issue. The parties also agreed that, during the October 2018 hearing, the Board did not ensure compliance with the duties of a hearing officer under 38 C.F.R. § 3.103(c) and Bryant v. Shinseki, 23 Vet. App. 488, 497 (2010), by failing to explain fully all issues relevant and material to substantiating the Veteran's claims. In a September 2020 Remand, the Board instructed the AOJ to correct the deficiencies noted in the JMR. The AOJ partially complied by mailing the Veteran a copy of the November 2016 statement of the case, informing him by letter that he was entitled to attend another hearing or waive his right to do so, and explaining that it was his responsibility to submit clear evidence establishing that VA's regular mailing practices were not followed. However, the AOJ failed to elicit a response from the Veteran, including any waiver of his right for another hearing, and did not, as requested, explain VA's regular mailing practices. In addition, it sent the notification to the Veteran's previous representative rather than the one with whom the Veteran contracted after the Board issued its September 2020 Remand. Corrective action is therefore needed. These matters are REMANDED for the following action: 1. In response to the Veteran's requests under FOIA, provide the Veteran and his current representative written notice explaining VA's regular mailing practices. 2. Inform the Veteran and his current representative that, due to the Board's failure to explain fully all issues relevant and material to substantiating his claims, he is entitled to attend another hearing before the Board or to waive this right. Further inform the Veteran and his current representative that, if no response is received within 30 days, the Board will assume the Veteran is waiving his right to attend another hearing. 3. Indicate in writing in the record whether the Veteran responds. If he exercises his right to another Board hearing, return the case for scheduling. Lesley Rein Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.