BVA9501184 DOCKET NO. 93-01 923 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased (compensable) disability evaluation for service-connected bilateral hearing loss. 2. Entitlement to an effective date prior to February 3, 1991, for a 10 percent evaluation for service-connected tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from October 1966 to December 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision by the St. Petersburg, Florida, Regional Office (RO). By notice of disagreement received in August 1992, the veteran initiated an appeal on the issue of an earlier effective date for a 10 percent rating for service-connected tinnitus. A statement of the case on this issue was furnished to the veteran and his representative in October 1992, and a substantive appeal on this issue was received later that same month. This substantive appeal was also accepted as a notice of disagreement on the additional issue of entitlement to an increased (compensable) rating for service- connected bilateral hearing loss. A supplemental statement of the case addressing the hearing loss issue was furnished to the veteran and his representative in December 1992, and a written communication received from the veteran in January 1993 was accepted as a substantive appeal on this issue. The veteran is represented by The American Legion. In view of the following remand decision, the Board is deferring appellate review of the issue of entitlement to an increased (compensable) disability evaluation for service-connected bilateral hearing loss. REMAND At the present time, the only issues in appellate status are those described on the preceding page of this decision. However, in reviewing the contentions offered by and on behalf of the veteran, it appears that the new issue of entitlement to an earlier effective date for the original grant of service connection for tinnitus has now been raised. Specifically, it is maintained that the veteran's original claim filed in February 1969 expressly referred to "constant ringing" in relation to his ears. The veteran's representative has noted that fact that the RO took no action to adjudicate this tinnitus claim at that time. A review of the record reveals that the RO's rating decision of July 1969 which was accomplished in response to the veteran's February 1969 claim did grant entitlement to service connection for several disabilities, including bilateral mixed deafness. However, that rating decision did not expressly either deny or allow the veteran's tinnitus claim. The Board notes that although the Schedule for Rating Disabilities (38 C.F.R. Part 4) in effect in 1969 may not have provided for a compensable evaluation for tinnitus, this fact alone did not preclude establishing service connection for that disability if the necessary nexus to service was otherwise shown. At any rate, the veteran's claim for entitlement to service connection for tinnitus must be viewed as pending from the filing of the veteran's February 1969 claim which expressly described tinnitus until the RO finally adjudicated this claim and established service connection for tinnitus by rating decision in May 1992. It further follows that the RO's 1969 rating decision cannot be viewed as a final decision on the tinnitus issue. In view of the fact that the RO's adjudication of the newly raised issue of entitlement to an earlier effective date for the original grant of service connection for tinnitus may have a direct effect on the issue of entitlement to an earlier effective date for a 10 percent rating for tinnitus which is currently in appellate status, the two issues are intertwined. All such intertwined issues must be adjudicated together. Harris v. Derwinski, 1 Vet.App. 180 (1991). Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. The RO should review the claims file and adjudicate the issue of entitlement to an earlier effective date for a grant of service connection for tinnitus in view of the fact that its rating decision of July 1969 did not adjudicate the veteran's tinnitus claim and was thus not final as to this issue. After adjudicating this issue, the RO should accomplish any necessary adjustments in the assignment(s) over time of a disability evaluation for tinnitus. 2. If the RO's determination on the issue of entitlement to an earlier effective date for a grant of service connection for tinnitus is adverse to the veteran, then the veteran and his representative should be notified of this decision and apprised of appellate rights and procedures, including clear notice of the need to file a timely notice of disagreement if the veteran wishes to initiate an appeal as to this newly raised issue. 3. After adjudicating the new issue of entitlement to an earlier effective date for a grant of service connection for tinnitus, the RO should review the evidence and determine whether the veteran's claim for entitlement to an effective date prior to February 3, 1991, for a 10 percent evaluation for service-connected tinnitus can be granted. If the RO's determination as to this issue remains adverse to the veteran, then the veteran and his representative should be furnished a supplemental statement of the case setting forth a summary of the evidence, a citation to and discussion of applicable laws and regulations, and a detailed analysis of the reasons for the RO's determination. After affording the veteran and his representative a reasonable opportunity to respond, the case should be returned to the Board for further appellate review. The purpose of this decision is to comply with the jurisprudence of the Court. No action is required of the veteran or his representative pending further notice from the RO. G.H. SHUFELT Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).