Citation Nr: 1323284 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 07-06 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for hypertension. 2. Entitlement to an increased evaluation for bilateral hearing loss, evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1970. He died in January 2011 while the claims on appeal were pending before the Board. The appellant has been substituted for the Veteran as discussed below. These matters initially came before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In January 2009, the Veteran testified at a videoconference hearing before a Veterans Law Judge of the Board; a transcript of that hearing is of record. In February 2009, the Board remanded the claims to the RO, via the Appeals Management Center (AMC). In April 2011, the claims were dismissed due to the death of the Veteran. In March 2012, the RO determined that the appellant was eligible for substitution to continue the Veteran's appeal pursuant to the Veterans' Benefits Improvement Act of 2008, which created a new 38 U.S.C.A. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008. 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 As noted above, this is a case governed by 38 U.S.C.A. § 5121A as to a party substituted for the deceased service person. VA's Compensation and Pension Service in August 2010 issued a Fast Letter, providing guidance on processing claims involving substitution of parties and noting specifically that, unlike accrued benefits claims, where an eligible party is substituted, the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any pertinent additional evidence. See Fast Letter 10-30 (Aug. 10, 2010), amended April 3, 2013. VA has also published a proposed new regulation, 38 C.F.R. § 3.1010, to address the issue further. See 76 Fed. Reg. 8666 (Feb. 15, 2011). The proposed regulation indicates that a substitute generally would have the same rights regarding hearings, representation, and appeals as would have applied to the claimant had the claimant not died. There is nothing in the Fast Letter to the contrary. In this case, the Veterans Law Judge before whom the Veteran had his hearing is no longer with the Board. Consistent with the applicable statute and regulation, the appellant was notified in a May 2013 letter that the law requires the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). The appellant was therefore offered the opportunity to have a hearing before the Veterans Law Judge who will decide the case in which she has been substituted. The appellant returned VA's letter in June 2013, choosing to appear at a Travel Board hearing before another Veterans Law Judge at her local RO. A remand is therefore necessary in order to comply with the appellant's hearing request. Accordingly, the case is REMANDED for the following action: Schedule the appellant for a Travel Board hearing before a Veterans Law Judge at her local Regional Office. Appropriate notification should be given to the appellant and her representative, and such notification should be documented and associated with the appellant's claims folder. 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). 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). _________________________________________________ DEREK R. BROWN 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).