Citation Nr: 1319543	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  10-09 365	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel





INTRODUCTION

The Veteran had active military service from August 1967 to August 1969.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  Jurisdiction over the Veteran's claims file currently resides with the RO in St. Petersburg, Florida.  

In the above noted July 2008 rating decision, besides the denial of the Veteran's claim for service connection for tinnitus, the RO also denied a claim for service connection for tinea corporis (also claim as eczema), fungal microorganisms, onychomycosis, and white spots in skin.  The Veteran perfected his appeal to the Board on the denial of both claims.  In a subsequent March 2012 rating decision, the RO granted service connection and assigned a 30 percent rating for tinea corporis/pedis (also claimed as eczema), fungal microorganisms, onychomycosis, and white spots in skin.  

In light of the RO's grant of service connection, the Veteran's claim on appeal for service connection for tinea corporis (also claim as eczema), fungal microorganisms, onychomycosis, and white spots in skin is no longer in appellate status.  

Also, in April 2013, following certification of the Veteran's appeal by the RO, the Board received additional evidence from the Veteran pertaining to his appeal.  This evidence included written argument as well as VA audiology notes dated in January 2013 and April 2013.  The Veteran submitted the evidence without waiving the review of the evidence in the first instance by the agency of original jurisdiction (AOJ).  See 38 C.F.R. § 20.1304 (2012).  Nonetheless, in light of the development outlined below, the evidence will be accepted for inclusion into the record on appeal.  

Finally, the Veteran has discussed the issue of hearing loss in conjunction with arguments pertaining to his claim on appeal for service connection for tinnitus.  Both in a September 2012 statement and a subsequent April 2013 statement in support of claim (VA Form 21-4138), the Veteran argued that his hearing loss and tinnitus warranted service connection.  The issue of service connection for hearing loss has not been developed or adjudicated by the RO; as such, the claim of service connection for hearing loss is referred to the AOJ for appropriate action.  

As will be discussed in more detail below, the appeal is REMANDED to the RO.  VA will notify the Veteran if further action is required.


REMAND

The Veteran perfected his claim on appeal by submitting a timely VA Form 9 (Appeal to Board of Veterans' Appeals) in March 2010.  At that time, he checked the box indicating that he did not wish a Board hearing.  Thereafter, in March 2012, the RO issued the Veteran a Supplemental Statement of the Case (SSOC), which continued the denial of his claim.  In response to the SSOC, the Veteran submitted a second VA Form 9 to the RO in December 2012.  In the VA Form 9, the Veteran checked the box indicating that he wished a videoconference hearing before a member of the Board.  

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).  A hearing on appeal before the Board will be granted if the Veteran expresses a desire to appear in person.  In view of the pending hearing request in this matter, the Board must remand the case to ensure that the Veteran is afforded all due process of law.  See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.700 (2012).  



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Accordingly, this case is REMANDED for the following action:

Schedule the Veteran for a videoconference hearing with a Veterans Law Judge.  The Veteran should be notified in writing (at his latest address of record) 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.  

The Veteran 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 all claims remanded by the Board or the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
JAMES A. MARKEY
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).