Citation Nr: 21026349 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-23 439 DATE: April 30, 2021 REMANDED The issue of entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1965 to January 1966, with additional service in the United States Navy Reserve. This matter comes before the Board of Veterans’ Appeals (Board) before a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office. Jurisdiction of the Veteran’s claims file currently resides with the St. Petersburg, Florida RO. In May 2019, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Thereafter, in October 2019, the Board reopened the previously-denied issue of service connection for tinnitus as it found that new and material evidence had been received. The Board then granted service connection for tinnitus on the merits. Lastly, the Board found that a July 2011 rating decision contained clear and unmistakable error (CUE) in that it required the receipt of new and material evidence to reopen a claim of entitlement to service connection for a back disability. The case has returned to the Board. Service Connection for a Back Disability As stated previously, in the October 2019 decision, the Board found that a July 2011 rating decision contained CUE to the limited extent that it required the receipt of new and material evidence prior to adjudication of the issue of entitlement to service connection for a back disability on its merits. In the last paragraph of the decision, the Board directed the Agency of Original Jurisdiction (AOJ) of adjudicate the Veteran’s claim for service connection for a back disability on its merits. Following the October 2019 Board decision, the AOJ issued a supplemental statement of the case (SSOC) in March 2020 which adjudicated service connection for a back disability. However, this SSOC was issued in error as the October 2019 Board’s finding of CUE with respect to the requirement of new and material evidence constituted a full grant of the benefit on appeal. Thus, adjudicating the merits of the issue of service connection for back disability would constitute a downstream issue, requiring the issuance of another rating decision—not a SSOC—and the filing of another timely notice of disagreement to initiate appellate review. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). Accordingly, the Board concludes that it currently is without jurisdiction to adjudicate the merits of the issue of service connection for a back disability and remands the case to the AOJ for the issuance of a rating decision. See 38 C.F.R. § 19.20. In remanding the issue of service connection for a back disability, the Board acknowledges the Veteran’s March 2020 and December 2020 requests for another Board hearing. However, as the Board does not have jurisdiction at this time, such a request may not be fulfilled. The matter is REMANDED for the following action: Issue the Veteran and his representative a rating decision that addresses the issue of entitlement to service connection for a back disability on the merits. In issuing the rating decision, inform the Veteran of his appellate rights. The Veteran is hereby notified that, if he is dissatisfied with the outcome of this rating decision, he must file another notice of disagreement to initiate appellate review of the issue of service connection for a back disability. The case should only be transferred to the Board if, upon issuance of the rating decision: 1. the Veteran files a timely notice of disagreement, 2. the AOJ then issues a statement of the case, and 3. following the issuance of the statement of the case, the Veteran timely files a substantive appeal. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, Counsel 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.