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).