Citation Nr: 1336602	
Decision Date: 11/08/13    Archive Date: 11/22/13

DOCKET NO.  09-28 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Becker, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from March 1967 to November 1972.  He subsequently served in the Air Force National Guard.

This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  Service connection for bilateral hearing loss was denied therein.  The Veteran appealed this determination.

In January 2010, the Veteran testified at a hearing before a Decision Review Officer.  He testified before a Veterans Law Judge at another hearing in July 2010.  The Board denied service connection for bilateral hearing loss in a January 2011 decision.  Once again, the Veteran appealed.  In January 2012, the United States Court of Appeals for Veterans Claims (Court) issued an Order that granted a Joint Motion for Remand dated earlier that month requesting that the Board's decision be set aside.  As such, service connection for bilateral hearing loss was remanded back to the Board for readjudication.  The Board remanded for additional development to aid readjudication in April 2012.  Based on review of the Veteran's paper claims file as well as his Virtual VA electronic claims file, another remand is warranted.  


REMAND

Although the Board sincerely regrets the further delay of another remand, adjudication of this matter cannot proceed at this time. The Board's April 2012 remand directed that, after completion of evidentiary development discussed in the Joint Motion for Remand, the Veteran should be scheduled for a video conference hearing. It was explained that he was notified via a March 2012 letter that the Veterans Law Judge who conducted his July 2010 hearing was no longer employed by the Board. This letter also notified him that the Veterans Law Judge who conducts a hearing shall participate in making the final decision with respect to the issue(s) covered by it. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013). The letter requested that he express whether or not he desired a hearing before an available Veterans Law Judge and, if so, what kind. It then was explained that the Veteran's representative responded with a March 2012 statement conveying the desire for another hearing by video conference. Next, the failure to afford the Veteran a video conference hearing was deemed to constitute a denial of due process. 38 C.F.R. § 20.904(a)(3) (2013). There unfortunately is no indication that he has been scheduled for such a hearing. This must be done. Indeed, in addition to the aforementioned, the Veteran has the right to compliance with the Board's previous remand directive in this regard. Stegall v. West, 11 Vet. App. 268 (1998). As the RO schedules video conference hearings, another remand is necessary.

Accordingly, this matter is REMANDED for the following action:

Schedule the Veteran for a video conference hearing before the Board.  Notification of the date and time of the hearing shall be sent to him at his last address of record and to his representative.  After the hearing, or after the Veteran's failure to appear for, or cancellation of, the hearing, this appeal should be returned to the Board.

The Veteran is advised that he has the right to submit additional evidence and argument on this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This matter must be afforded prompt treatment.  The law requires that all claims that are remanded by the Board or by the Court be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).


_________________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Only a decision of the Board is appealable to the Court.  38 U.S.C.A. § 7252 (West 2002).  This remand is in the nature of a preliminary order and does not constitute a decision by the Board.  38 C.F.R. § 20.1100(b) (2013).