Citation Nr: 1301212	
Decision Date: 01/11/13    Archive Date: 01/16/13

DOCKET NO.  10-41 634	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a compensable evaluation for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W.H. Donnelly, Counsel



INTRODUCTION

The Veteran served on active duty with the United States Navy from September 1982 to August 1985, and from June 1986 to January 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Waco, TX, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to an increased evaluation for service-connected bilateral hearing loss.

A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU), where there is evidence of record regarding unemployability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran here has explicitly alleged entitlement to TDIU due to hearing problems; that claim was denied in a May 2012 rating decision, which the Veteran has not at this time appealed.  He has also not reasserted his allegations regarding unemployability in the context of his hearing loss claim.  Accordingly, continued inference of entitlement to TDIU as an appeal issue is not appropriate at this time.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure a total review of the evidence.

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

In filing his substantive appeal in September 2010, the Veteran indicated that he desired a hearing before a Veterans Law Judge via videoconference from the RO.  Such was never scheduled; the Veteran in October 2010 withdrew his Board hearing request and instead requested a local hearing before a Decision Review Officer (DRO).  

The Veteran in turn withdrew the request for a DRO hearing following an informal conference.  He opted to undergo a new VA examination in lieu of the hearing.

However, in October 2012 the Veteran submitted another VA Form 9, Appeal to Board of Veterans' Appeals, on which he renewed his request for a hearing before a Veterans Law Judge via videoconference from the RO.

Because the Board may not proceed with an adjudication of the Veteran's claim without affording him an opportunity for a Board hearing, a remand is required.  38 U.S.C.A. § 7107(b); 38 C.F.R. § 20.700(a).  Videoconference hearings are scheduled by the RO.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a hearing before a Veterans Law Judge via videoconference from the RO.  After the hearing is conducted, the case should be returned to the Board, in accordance with appellate procedures.

The appellant has the right to submit additional evidence and argument on the matter 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. 2012).



_________________________________________________
BETHANY L. BUCK
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) (2012).