Citation Nr: 1234906	
Decision Date: 10/09/12    Archive Date: 10/17/12

DOCKET NO.  07-12 231	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a pulmonary disorder, to include asthma, bronchitis and emphysema, claimed as a residual of carbon tetrachloride exposure.


REPRESENTATION

Appellant represented by:	Attorney Carol Avard


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from September 1960 to August 1963.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified before a Decision Review Officer at a hearing in January 2007.  A transcript is of record.

The Veteran testified before a Veterans Law Judge in December 2007 at a Travel Board hearing at the above VARO.  A transcript is of record.

In a November 2009 decision, the Board denied entitlement to service connection for emphysema, claimed as a residual of carbon tetrachloride exposure; polycystic kidney disease, claimed as a residual of carbon tetrachloride exposure; hypertension, claimed as a residual of carbon tetrachloride exposure; coronary artery disease and atrial fibrillation, claimed as a residual of carbon tetrachloride exposure and to include as secondary to hypertension; and blindness of the left eye, to include as secondary to hypertension.  The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In a July 2011 Memorandum Decision, the Court vacated the Board's November 2009 decision as it pertained to service connection for emphysema, and remanded this case to the Board for readjudication.  The Court affirmed the part of the Board decision denying service connection for the other four disabilities that were at issue.

Consistent with the Court's July 2011 decision, the issue of service connection for emphysema, claimed as a residual of carbon tetrachloride exposure, has been reclassified as service connection for a pulmonary disorder, to include asthma, bronchitis and emphysema, claimed as a residual of carbon tetrachloride exposure.




The appeal is REMANDED to the RO.  VA will notify the appellant if further action is required.


REMAND

In his April 2007 substantive appeal to the Board, via VA Form 9, the Veteran requested to testify at a Travel Board hearing at the RO before a Veterans Law Judge (VLJ).  See 38 C.F.R. § 20.700 (2011).  In December 2007 the Veteran testified before a VLJ who is no longer employed by the Board.  In November 2011, the Board sent the Veteran a letter advising him that the law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal.  The RO requested that the Veteran indicate whether he wished to have another hearing.  In March 2012 the Veteran indicated that he indeed wants another Travel Board hearing at the RO.

Consideration of due process mandate that the Board may not proceed with review of the claim on appeal without affording the Veteran an opportunity for his requested hearing.  Therefore, a remand is required in this case.  See 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700(a) (2011).  

Accordingly, the case is REMANDED for the following action:

The Veteran should be scheduled for a Travel Board hearing at the RO, in accordance with the procedures set forth at 38 C.F.R. §§ 20.700(a), 20.704(a), as per the Veteran's request, and as the docket permits.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



_________________________________________________
ROBERT C. SCHARNBERGER
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) (2011).