Citation Nr: 21027350 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-58 673A DATE: May 5, 2021 REMANDED Entitlement to an effective date earlier than May 26, 2015, for bilateral hearing loss is remanded. Entitlement to an effective date earlier than May 26, 2015, for tinnitus is remanded. Revision of the April 2003 rating decision denying service connection for hearing loss based on clear and unmistakable error (CUE) is remanded. Revision of the April 2003 rating decision denying service connection for tinnitus based on CUE is remanded. Entitlement to special monthly compensation (SMC) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to November 1984. These matters are on appeal to the Board of Veterans' Appeals (Board) from an October 2016 rating decision. A hearing was held by the undersigned Veterans Law Judge in January 2020. By way of procedural background, the Veteran was denied service connection for hearing loss and tinnitus in an April 2003 rating decision, and again in June 2012 and December 2015. An October 2016 rating decision granted service connection for both claims effective May 26, 2015, the date of his claim to reopen. He filed a Notice of Disagreement (NOD) in January 2017 disagreeing with the effective date. The Veteran contended he was entitled to an earlier effective date back to his original denial, which he wrote was in 2007. A September 2018 Statement of the Case (SOC) continued to deny the Veteran's earlier effective date claims. The Veteran filed a VA Form 9 reiterating that the effective date should be retroactive to when VA failed to diagnose his condition. In the Veteran's hearing, it was clarified that he was seeking revision of the initial rating decision denying his claims in April 2003 based on CUE. Following the hearing, the Board issued a decision in December 2020. The Board found it had no jurisdiction over the CUE motions as they had not been initially adjudicated by the Regional Office (RO). As such, the CUE motions were remanded for initial RO adjudication, and the earlier effective date claims were remanded as inextricably intertwined. The Board also found entitlement to SMC had been raised by the record, and the claim was also remanded for initial adjudication once new records and information from the Veteran were obtained. In response to the Board's remand directives, the RO issued a Supplemental Statement of the Case (SSOC), rather than a rating decision, discussing whether revision of the April 2003 rating decision was warranted, as well as the SMC claim and earlier effective date claims. This, however, is improper as the RO should have instead issued a rating decision to address the issue in the first instance. To that end, an SSOC, by its own terms, cannot be used to decide any new issues. See 38 C.F.R. § 19.31(a). This is in violation of long-standing VA policy and relevant regulations governing what issues can be addressed in an SSOC. See id. The Board also notes that the Court of Appeals for Veterans' Claims has held that the Board can waive the timeliness of an appeal when actions taken by the RO lead an appellant to believe that an issue remains on appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In this case, however, the Board cannot adjudicate the claim of entitlement to revision of the April 2003 rating decision on its merits. This is because the RO's failure to adjudicate this claim initially in a rating decision, as opposed to promulgating an SSOC, precludes the Veteran's ability at present to disagree with this rating decision by filing a notice of disagreement. This procedural defect (i.e., erroneously issuing an SSOC rather than a rating decision) also does not permit the Board adjudicate the issue of entitlement to revision of the April 2003 rating decision on the merits and waive any timeliness with respect to an appeal. See id. Similarly, the SMC claim should have been initially adjudicated by a rating decision, rather than an SSOC. The Veteran's earlier effective date claims are inextricably intertwined with the CUE claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). As such, it was an error for the AOJ to re-certify this appeal to the Board at this juncture. It must be remanded for further action. Accordingly, these matters are REMANDED for the following action: Adjudicate the Veteran's claims for entitlement to revision of the April 2003 rating decision denying service connection for hearing loss and tinnitus and entitlement to SMC by promulgating a rating decision. A copy of any rating decision on this claim should be sent to the Veteran and his representative and must be included in the claims file. An appropriate length of time should be allowed for response from the Veteran and/or his representative. This claim should not be returned to the Board unless the Veteran subsequently perfects a timely appeal. (Signature on next page.) MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, Associate 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.