Citation Nr: 1413872
Decision Date: 03/31/14 Archive Date: 04/10/14
DOCKET NO. 07-16 209 ) DATE
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to an initial compensable evaluation for the service-connected bilateral hearing loss prior to July 21, 2010.
2. Entitlement to an evaluation in excess of 30 percent for the service-connected bilateral hearing loss from July 21, 2010.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Robert R. Watkins, General Attorney
INTRODUCTION
The Veteran served on active duty from October 1971 to August 1975.
This matter was originally before the Board of Veterans' Appeals (Board) on appeal from an April 2006 decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In September 2009, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ). In September 2011, the Board issued a decision that denied the claims of entitlement to an initial compensable evaluation for the service-connected bilateral hearing loss prior to July 21, 2010 and entitlement to an evaluation in excess of 30 percent for the service-connected bilateral hearing loss from July 21, 2010.
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. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2013).
In September 2013, pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013), the Board sent the Veteran a letter notifying him of an opportunity to receive a new decision from the Board that would correct any potential due process error relating to the duties of the VLJ that conducted the September 2009 hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a VLJ has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked). In September 2013, the Veteran responded that he wished to have the prior decision vacated and a new one issued in its place.
Accordingly, the portion of the September 2011 Board decision that denied entitlement to an initial compensable evaluation for the service-connected bilateral hearing loss prior to July 21, 2010 and entitlement to an evaluation in excess of 30 percent for the service-connected bilateral hearing loss from July 21, 2010 is vacated. The remainder of the September 2011 Board decision remains undisturbed.
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D. C. SPICKLER
Veterans Law Judge, Board of Veterans' Appeals