Citation Nr: 1804440	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  15-00 332	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.  

2.  Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Daniel Curry, Attorney at Law


ATTORNEY FOR THE BOARD

D. Chad Johnson, Counsel



INTRODUCTION

The Veteran served on active duty from February 1953 to February 1955.  

These matters come to the Board of Veterans' Appeals (Board) from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

Without restating all of the prior procedural history of these matters, as discussed below, the prior June 2017 Board decision is vacated, and the issues of entitlement to service connection for bilateral hearing loss and tinnitus are remanded to the Agency of Original Jurisdiction (AOJ).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


ORDER TO VACATE

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017).  

A recent June 9, 2017 Board decision denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus, after which his attorney submitted a valid VA Form 21-22a, Appointment of Individual as Claimant's Representative, in support of his representation and a motion to vacate the June 2017 Board decision.  In support of his motion, the Veteran's attorney submitted a private medical nexus opinion which was not of record at the time of the June 2017 Board decision but which had been previously provided to VA in May 2017.  

Given the above, the June 9, 2017 Board decision which denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus is vacated.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.904.  


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).  

As discussed above, following the now-vacated June 2017 Board decision, additional relevant evidence has been associated with claims file that has not yet been reviewed by the agency of original jurisdiction (AOJ), specifically, a May 2017 private nexus opinion.  The appellate scheme set forth in 38 U.S.C. § 7104 (a) (2012) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level.  See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  

When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a supplemental statement of the case (SSOC), it must prepare an SSOC reviewing that evidence.  38 C.F.R. § 19.31(b)(1) (2017).  Further, when evidence is received prior to the transfer of a case to the Board, an SSOC must be furnished to the Veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31, if the additional evidence is duplicative or not relevant to the issue on appeal.  38 C.F.R. § 19.37(a) (2017).  Notably, the May 2017 private nexus opinion was submitted following the most recent March 2017 SSOC, and in any event, the Veteran's attorney specifically requested initial AOJ consideration of the evidence discussed above in November 2017.  38 C.F.R. § 20.1304(c) (2017).  Therefore, the Board has no choice but to remand these claims so that the AOJ can consider the newly associated evidence in the first instance.  

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).  Expedited handling is requested.)

Following any additional development deemed necessary, readjudicate the Veteran's claims on appeal with consideration of all additional evidence associated with the claims file since the March 2017 SSOC, including the May 2017 private nexus opinion.  If any claim on appeal remains denied, provide the Veteran and his attorney with an SSOC and allow an appropriate time for response before returning the matters to the Board for further adjudication, if otherwise in order.  

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. §§ 5109B, 7112 (2012).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs