Citation Nr: 1326818 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-25 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disorder (claimed as a knee injury and osteoarthritis). 2. Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from June 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In an October 2009 rating decision, the RO determined that new and material evidence was not submitted to reopen the claim of service connection for a right knee disorder. In a September 2011 rating decision, the RO denied a compensable evaluation for bilateral hearing loss. In addition to the paper claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the paperless claims file reveals VA treatment records that they are relevant to the issues on appeal. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ 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 regard to the issue of whether new and material evidence was received to reopen the claim for service connection for a right knee disorder, in his June 2010 substantive appeal, the Veteran requested a Board hearing at the RO. Thereafter, he was notified by the RO that he was placed on the list of persons wishing to appear before a Veterans Law Judge at a Travel Board hearing held at the RO. He was informed that unless VA heard otherwise, his name would remain on the list of people waiting for a Travel Board hearing. A review of the claims file shows no indication that the Veteran withdrew his hearing request. Rather, in a June 2011 statement, the Veteran indicated that he would prefer to be scheduled for a Travel Board hearing at the Huntington, West Virginia, RO rather than the Louisville, Kentucky, RO because he lived closer to Huntington than Louisville. In his May 2013 substantive appeal with respect to the issue of an increased compensable evaluation for bilateral hearing loss, he requested a Board hearing via live videoconference. Subsequently, in an August 2013 statement, the Veteran's representative noted that the Veteran has not withdrawn his hearing request and he wished to appear before a Veterans Law Judge via a videoconference hearing. The failure to afford the Veteran a hearing would amount to a denial of due process. 38 C.F.R. § 20.904(a)(3). Therefore, the Veteran should be scheduled for a videoconference hearing before the Board at that RO in Huntington, West Virginia. Accordingly, the case is REMANDED for the following action: The RO should take appropriate steps in order to schedule the Veteran for a videoconference hearing in accordance with his request. 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 the 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 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). _________________________________________________ JESSICA J. WILLS 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).