Citation Nr: 1318652	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  06-33 574	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus

3.  Entitlement to service connection for hyposmia (loss of sense of taste).

4.  Entitlement to service connection for loss of sense of smell.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from September 1966 to September 1968, with service in the Republic of Vietnam from September 1967 to September 1968.

This appeal comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  


REMAND

The Veteran testified before a Veterans Law Judge (Board member) in September 2009.  A transcript of the hearing is of record.  Effective February 27, 2012, the Secretary of Veterans Affairs designated the Veterans Law Judge who conducted the September 2009 hearing to serve as the Acting Chairman of the Board, pursuant to 5 U.S.C. § 3345.  In March 2012, the Board remanded this matter to the RO for additional development.

As the Board's Acting Chairman, the Veterans Law Judge was no longer available to consider the appeal as an individual member of the Board.  In an April 2013 letter, the Board offered the Veteran the opportunity to testify at another Board hearing before the Board reassigned the appeal to a different Veterans Law Judge.  In May 2013, the Veteran informed the Board that he wished to appear at a hearing before a member of the Board at the RO in Little Rock, Arkansas (Travel Board hearing).  

It is a basic principle of veterans' law 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 a claimant expresses a desire to appear in person.  The importance of responding to a request for a hearing is recognized under 38 C.F.R. § 20.904(a)(3) (2012), as a Board decision may be vacated when there is a prejudicial failure to afford an appellant a personal hearing.  The Veterans Law Judge who conducts the hearing shall participate in making the final determination of the claim.  38 C.F.R. § 20.707 (2012).  To ensure full compliance with due process requirements, a remand is required to schedule a Board hearing.   

Accordingly, the case is REMANDED for the following action:

Schedule a Board personal hearing to be held at the RO in Little Rock, Arkansas (Travel Board hearing).  
 
The Veteran 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).



_________________________________________________
J. Parker
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).