Citation Nr: 1302589	
Decision Date: 01/23/13    Archive Date: 01/31/13

DOCKET NO.  05-37 330	)	DATE
	)
	)

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


THE ISSUES

1.  Whether the reduction in the rating for service-connected bilateral hearing loss from 80 percent disabling to 10 percent disabling, effective September 1, 2012, was proper.  

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from January 1968 to October 1969.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2010 and June 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In the March 2010 rating decision, the RO denied entitlement to a TDIU and proposed reducing the rating of the Veteran's bilateral hearing loss from 80 percent disabling to 10 percent disabling.  

In his March 2010 notice of disagreement (NOD) regarding the denial of his claim for a TDIU, the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO.  A March 2011 letter from the RO advised the Veteran that he was scheduled for a hearing in April 2011.  However, in March 2011, the Veteran withdrew his hearing request.    

In the June 2012 rating decision, the RO reduced the rating for service-connected bilateral hearing loss from 80 percent disabling to 10 percent disabling, effective September 1, 2012.  

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

The Board notes that, in August 2008, the Veteran presented testimony before a Veterans Law Judge at the RO regarding claims for service connection for a right knee disorder, a back disorder, and diabetes mellitus.  The claims for service connection for a right knee disorder and a back disorder were denied in an October 2008 Board decision.  The claim for service connection for diabetes mellitus was denied in a July 2010 Board decision.  

The Veterans Law Judge who conducted the August 2008 hearing is no longer employed at the Board.  In November 2012, the Board issued a letter to the Veteran that informed him of this circumstance and that asked him to inform the Board as to whether or not he wanted to attend a new hearing.  See 38 U.S.C.A. § 7107(c) (West 2002).  The Veteran replied in December 2012 that he wanted to appear at a hearing before a Veterans Law Judge at the RO or attend a videoconference hearing before a Veterans Law Judge at the RO.  Despite the fact that he did not previously provide testimony regarding the TDIU claim, in light of his recent request for a hearing, remand is required to schedule the requested hearing.

Additionally, the Veteran's Virtual VA e-folder reflects that, in October 2012 he filed a VA Form 9 (substantive appeal) perfecting his appeal regarding the propriety of the reduction of the rating for service-connected bilateral hearing loss.  In his VA Form 9, the Veteran requested a hearing before a DRO at the RO, as well as a hearing before a Veterans Law Judge at the RO.  Accordingly, this claim must also be remanded to schedule the Veteran for his requested hearings.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a hearing before a DRO at the RO regarding the issue of whether the reduction in the rating for service-connected bilateral hearing loss from 80 percent disabling to 10 percent disabling, effective September 1, 2012, was proper.  

2.  Thereafter, schedule the Veteran for a hearing before a Veterans Law Judge, either at the RO or via videoconference.  The RO should notify the Veteran and his representative of the location, date and time of the hearing, in accordance with 38 C.F.R. § 20.704(b) (2012), and should associate a copy of such notice with the claims file.  After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures.

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

These claims 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).



_________________________________________________
P.M. DILORENZO
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).