Citation Nr: 21006652 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-14 211A DATE: February 4, 2021 REMANDED Entitlement to a rating in excess of 10 percent for tinnitus is remanded. REASONS FOR REMAND The appellant served on active duty in the U.S. Marine Corps from March 1961 to April 1962. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to a rating in excess of 10 percent for tinnitus. The appellant was afforded a hearing before the undersigned in October 2019 and was accompanied by his then-representative. A transcript is of record. In July 2020, the Board remanded the application to reopen the previously denied claim of entitlement to service connection for a neck disability, the issues of entitlement to service connection for impotence, residuals of testicular cancer, a kidney disability, diabetes mellitus type 2, and residuals of concussion, and the issues of entitlement to a rating in excess of 10 percent for tinnitus and a compensable rating for right ear hearing loss prior to October 22, 2019. A Supplemental Statement of the Case (SSOC) was issued in November 2020. In December 2020, the appellant, through his attorney, submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review. The appellant elected to proceed under the modernized appeals system for, inter alia, the application to reopen the previously denied claim of entitlement to service connection for a neck disability, the issues of entitlement to service connection for impotence, residuals of testicular cancer, a kidney disability, diabetes mellitus type 2, and residuals of concussion, and the issue of entitlement to a compensable rating for right ear hearing loss prior to November 12, 2019. These issues had been addressed in the November 2020 SSOC. It was acknowledged that, by opting in from the SSOC, these issues would be withdrawn from the legacy appeals process. The appellant was sent a letter in December 2020 stating that, based upon his request to participate in the modernized appeals system, the application to reopen the previously denied claim of entitlement to service connection for a neck disability, the issues of entitlement to service connection for impotence, residuals of testicular cancer, a kidney disability, diabetes mellitus type 2, and residuals of concussion, and the issue of entitlement to a compensable rating for right ear hearing loss prior to November 12, 2019, had been withdrawn from the legacy appeals process and that such could not be reinstated under the legacy appeals process. The Board notes that the December 2020 letter also listed the issue of entitlement to a rating in excess of 10 percent for tinnitus. This was in error, as the appellant has not elected to participate in the modernized appeals system for this issue. As such, the issue of entitlement to a rating in excess of 10 percent for tinnitus has returned to the Board. Prior to the issuance of the November 2020 SSOC, the appellant’s attorney requested via October 2020 correspondence that the appellant be afforded a personal/audio hearing before a Decision Review Officer (DRO) regarding the issues which were remanded by the Board in July 2020. The attorney stated that the appellant wished to appear at the St. Petersburg RO in person and that the attorney would participate via teleconference. 38 C.F.R. § 3.2600 states that, in legacy claims, upon the request of the claimant, the reviewer will conduct a hearing under the version of § 3.103(c) of this chapter predating Public Law 115-55 (Veterans Appeals Improvement and Modernization Act of 2017). The version of 38 C.F.R. § 3.103(c) in effect prior to Public Law 115-55 directs that, upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter, subject to the limitations described in § 20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans' Appeals for appellate review. 38 C.F.R. § 3.103(c) (2018). The version of 38 C.F.R. § 20.1304 in effect prior to Public Law 115-55 states that an appellant has a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review or until the date or the date a decision is issued, whichever comes first, during which one may submit a request for, inter alia, a personal hearing. Any such request must be submitted directly to the Board and not to the agency of original jurisdiction. 38 C.F.R. § 20.1304 (2018). To this point, the United States Court of Appeals for Veterans Claims (Court) has recently held in Quinn v. Wilkie, 31 Vet. App. 284 (2019), that the law provides veterans who have already participated in a Board hearing the right to another such hearing, if requested, after the Board has remanded the appeal to the Agency of Original Jurisdiction (AOJ). See also 38 U.S.C. § 7107(b); Cook v. Wilkie, 908 F.3d 813 (Fed. Cir. 2018) (“Cook II”). Such is the case here and the Court made no distinction between a post-remand request for a DRO hearing and a post-remand request for a Board hearing. Thus, a remand is required to provide the appellant with his requested hearing for the remaining issue in the legacy appeals process which was addressed in the July 2020 Board remand – entitlement to a rating in excess of 10 percent for tinnitus. The matter is REMANDED for the following action: Schedule the appellant for a personal hearing with a Decision Review Officer (DRO) in accordance with applicable laws and regulations. A copy of the notification sent to the appellant of the scheduled hearing should be associated with the claims file. (Should the appellant elect to participate in a conference with a DRO in lieu of a hearing, or should he elect to withdraw his request, such should be clearly documented in the record). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.