Citation Nr: 0809719	
Decision Date: 03/24/08    Archive Date: 04/09/08

DOCKET NO.  05-33 953	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio



THE ISSUES

1.  Entitlement to service connection for bilateral hearing 
loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to a higher initial evaluation for 
posttraumatic stress disorder (PTSD), currently assigned a 30 
percent disability evaluation.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

Jessica J. Wills, Associate Counsel 


INTRODUCTION

The veteran served on active duty from October 1967 to 
October 1970.

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from September 2003 and April 2005 rating 
decisions of the Department of Veterans Affairs (VA) Regional 
Office (RO) in Cleveland, Ohio.  The September 2003 rating 
decision denied service connection for bilateral hearing 
loss, and the April 2005 rating decision denied service 
connection for tinnitus.  The April 2005 rating decision also 
granted service connection for PTSD and assigned a 30 percent 
disability evaluation effective from June 23, 2004.  The 
veteran appealed those decisions to Board, and the case was 
referred to the Board for appellate review.  

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the 
appellant if further action is required.


REMAND

Reason for Remand:  To schedule the veteran for a video 
conference hearing before the Board at the RO in Cleveland, 
Ohio.

A hearing was held in June 2007, before an acting Veterans 
Law Judge.  However, a letter was sent to the veteran in 
February 2008 in which he was informed that the Veterans Law 
Judge who had conducted that hearing was no longer able to 
render a decision in the appeal.  The letter stated that the 
law requires that the Veterans Law Judge who conducts a 
hearing on an appeal must participate in any decision made on 
that appeal.  The veteran was further notified that he had a 
right to another hearing, and it was requested that he 
complete and return a form indicating whether he wished to 
have another hearing, and if so, what type of hearing.  The 
veteran completed and returned the form indicating that he 
wanted to attend a videoconference hearing before a Veterans 
Law Judge at the regional office.

The failure to afford the veteran a hearing would amount to a 
denial of due process.  38 C.F.R. § 20.904(a)(3) (2007).  
Therefore, the veteran should be scheduled for a 
videoconference hearing before the Board at that RO in 
Cleveland, Ohio.

Therefore, in order to give the veteran every consideration 
with respect to the present appeal and to ensure due process, 
it is the Board's opinion that further development of the 
case is necessary.  Accordingly, the case is REMANDED to the 
Cleveland RO for the following action:

The RO should take appropriate steps in 
order to schedule the veteran for a 
personal hearing with a Veterans Law 
Judge of the Board via video conference 
at the local office in accordance with 
his request.  The veteran should be 
notified in writing of the date, time, 
and location of the hearing.  After the 
hearing is conducted, or if the veteran 
withdraws the hearing request or fails to 
report for the scheduled hearing, the 
claims file should be returned to the 
Board in accordance with appellate 
procedures.

When the development requested has been completed, the case 
should be reviewed by the RO on the basis of additional 
evidence.  If the benefit sought is not granted, the veteran 
and his representative should be furnished a Supplemental 
Statement of the Case and be afforded a reasonable 
opportunity to respond before the record is returned to the 
Board for further review.

The purpose of this REMAND is to obtain additional 
development, and the Board does not intimate any opinion as 
to the merits of the case, either favorable or unfavorable, 
at this time.  The appellant has the right to submit 
additional evidence and/or argument on the matter or matters 
the Board has remanded to the regional office.  Kutscherousky 
v. West, 12 Vet. App. 369 (1999).  No action is required of 
the appellant until he is notified. 




_________________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Appeals for Veterans Claims.  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) (2007).