Citation Nr: 1323124	
Decision Date: 07/19/13    Archive Date: 07/24/13

DOCKET NO.  12-31 033	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Newark, New Jersey



THE ISSUE

Entitlement to an initial compensable evaluation for the service-connected bilateral hearing loss.



REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs



ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel

INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran had active service from January 1952 to January 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the RO.

In the rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable evaluation.  The Veteran appealed this rating.  

A review of the Virtual VA paperless claims processing system reveals no additional records that are pertinent to the issue on appeal.

The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.


REMAND

In October 2012, the Veteran requested a hearing at the RO with a Veterans Law Judge via videoconference technology.  He was scheduled for a hearing in June 2013; however, in May 2013 statements, the Veteran's representative requested that the hearing be postponed and rescheduled at a later date due to a scheduling conflict.

In additional May 2013 statements, dated on the same day as the request to postpone and reschedule the hearing, the Veteran's representative notified the Board that the Veteran would not appear for his scheduled videoconference hearing in June 2013.  He stated, "Please be advised that the Veteran has cancelled his hearing date and requests that his appeal go directly to the [Board] for a decision."

Based on a review of the May 2013 statements, it is unclear whether the Veteran wishes to reschedule his videoconference hearing or to cancel his hearing request.

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.  To ensure full compliance with due process requirements, a remand is required. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

The RO should take appropriate action to schedule the Veteran for a videoconference hearing with a Veterans Law Judge at the earliest reasonable opportunity.  38 U.S.C.A. § 7107 (West 2002).  A copy of the notice to the Veteran of the scheduling of the hearing should be placed in the record, keeping in mind the 30-day advance notice requirement specified at 38 C.F.R. § 19.76 (2012).  Any indicated development also should be completed. 

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

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 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).



_________________________________________________
STEPHEN L. WILKINS
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).