Citation Nr: 1314546 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 03-21 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hyperacusis. 2. Entitlement to service connection for residuals of a right hand fracture. 3. Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as noncompensable. 4. Entitlement to an increased evaluation for tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served in the Army National Guard from January to November 1985, and had a period of active duty for training (ACDUTRA) from March to May 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions by Department of Veterans Affairs (VA) Regional Offices (ROs). In April 2002, the Waco RO denied service connection for a right arm fracture. This issue has been recharacterized as noted on the title page to better reflect the Veteran's contentions. In September 2008, the Board remanded the right hand claim so that a Travel Board hearing could be scheduled. In January 2010, the New York RO denied service connection for hyperacusis, and continued noncompensable and 10 percent ratings for service-connected bilateral hearing loss and tinnitus, respectively. In July 2010, the Waco RO continued the denial of service connection for hyperacusis. (The Board notes that, in June 2012, the Waco RO changed the effective date for the grant of service connection for tinnitus from March 16, 2001 to March 19, 2001.) The Veteran has filed claims seeking service connection for kidney failure, diabetes, hypertension, left forearm condition, left-sided and right-sided numbness secondary to a neck condition, heart failure, peripheral neuropathy secondary to diabetes, liver failure, brain tumor, right hand nerve damage secondary to a neck condition, left leg numbness secondary to a neck condition, semicircular disorder secondary to service-connected bilateral hearing loss, left shoulder condition secondary to a neck condition, right forearm condition, headaches, and acquired psychiatric disability. In May 2012 and August 2012, the RO sent the Veteran notice under the Veterans Claims Assistance Act (VCAA). However, based on the record, it does not appear that any further development has taken place or that a rating decision was issued. Therefore, the Board does not have jurisdiction over these issues and they are referred to the RO for appropriate action. 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 With respect to the right hand claim, in an August 2003 VA Form 9, the Veteran noted that he wanted to testify at a hearing before a Veterans Law Judge (VLJ) at the RO. In May 2006, the Veteran was notified that a Travel Board hearing had been scheduled at the New York RO for June 13, 2006. See 38 C.F.R. 20.704(b) (2012). An electronic record in the file indicates that he later withdrew his request for a hearing. However, there is no contemporaneous statement from the Veteran in the claims file. In a March 2007 VA Form 646, the Veteran stated "I wish to have my hearing reinstated." As noted above, in September 2008, the Board remanded this claim so that a hearing could be scheduled. With respect to the remaining claims, in May 2011 and July 2011 VA Form 9s, as well as in a separate May 2011 correspondence, the Veteran noted that he wanted to testify at a Central Office hearing. In October 2012, the Veteran was notified that a Travel Board hearing had been scheduled at the Waco RO for December 4, 2012. He failed to appear. In a correspondence dated in January 2013, the Veteran requested that the hearing be rescheduled and stated that he had been involved in "a vehicle/motorcycle accident and was hospitalized at the time and date" of the previously scheduled hearing. A basic principle of veterans' law stipulates that the Board shall decide an appeal only after affording the claimant an opportunity for a hearing. 38 U.S.C.A. § 7104 (West 2002). Pursuant to 38 C.F.R. § 20.700 (2012), a hearing on appeal before the Board will be granted if an appellant expresses a desire to appear in person. See also 38 C.F.R. § 20.704. In light of the Veteran's explanation that he missed his previously scheduled hearing because he was hospitalized with injuries sustained in a motor vehicle accident, the Board believes that he has presented good cause to have his hearing rescheduled. The Board also finds the Veteran's request for a Central Office hearing to have been withdrawn and replaced by his request for a Travel Board hearing. See 38 C.F.R. § 20.705. Accordingly, a remand of the Veteran's appeal is necessary to accord him another opportunity to testify at his requested Travel Board hearing. Accordingly, the case is REMANDED for the following action: Take appropriate steps to schedule the Veteran for a hearing before a VLJ at the RO in Waco, Texas. 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 his hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures. By this Remand, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this Remand is to afford the Veteran due process of law. In any event, the Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ A.C. MACKENZIE Acting 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).