Citation Nr: 21027128
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 17-64 446
DATE: May 4, 2021

REMANDED

The issue of entitlement to an effective date earlier than August 7, 2012, for the grant of service connection for tinnitus, to include on the basis of clear and unmistakable error (CUE) in an April 2006 rating decision, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1975 to May 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  As explained below, the issue on appeal has been expanded to include the Veteran's allegation of CUE in an April 2006 rating decision.

In February 2021, the Veteran testified at a virtual tele-hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

Although the Board sincerely regrets the additional delay, further action is needed on the Agency of Original Jurisdiction's (AOJ) part before the Board may adjudicate the Veteran's claim of entitlement to an effective date earlier than August 7, 2012, for the grant of service connection for tinnitus.

In that regard, the Board finds that various statements made by the Veteran during his February 2021 Board hearing, amount to an allegation of CUE in an April 2006 decision that denied his November 2005 claim of entitlement to service connection for tinnitus.  Specifically, the Veteran has asserted that treatment records at the time of the April 2006 rating decision showed a history of tinnitus related to a history of military noise exposure, consistent with the duties he performed in field artillery.    Although the AOJ has adjudicated the issue of entitlement to an earlier effective date for the grant of service connection for tinnitus, it has not adjudicated the related question of whether the April 2006 rating decision contained CUE. Therefore, that question must be remanded for adjudication by the AOJ in the first instance.  See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc); Huston v. Principi, 18 Vet. App. 395, 402-03 (2004).  Furthermore, as the Veteran's appeal of the effective date assigned following the grant of service connection for tinnitus is inextricably intertwined with his allegation of CUE in the April 2006 rating decision, the Board must delay reaching a determination on the claim for an earlier effective date until after the CUE allegation is addressed by the AOJ.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other).

The matter is REMANDED for the following actions:

1. Adjudicate the Veteran's allegation of clear and unmistakable error in the April 2006 rating decision.

2. After the above action has been completed, readjudicate the claim of entitlement to an effective date earlier than August 7, 2012, for the grant of service connection for tinnitus, to include consideration of the Veteran's allegation of CUE.  If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond.  Then, return the case to the Board, if in order.

 

 

S.C. Krembs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Bilstein, 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.