10-22 637

Opinion

Citation Nr: 1413855 Decision Date: 03/31/14 Archive Date: 04/10/14

DOCKET NO. 10-22 637 ) DATE )

On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky

THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.

REPRESENTATION

Veteran represented by: Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Thomas M. Susco II, General Attorney

INTRODUCTION

The Veteran served on active duty from April 1958 to April 1960 and from October 1961 to August 1962.

This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Veteran appeared at a hearing before an Acting Veterans Law Judge (AVLJ). In October 2011, the Board issued a decision that denied the claim of entitlement to service connection for a bilateral hearing loss disability.

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 AVLJ that conducted the September 2011 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 November 2013, the Veteran responded that he wished to have the prior decision vacated and a new one issued in its place.

Accordingly, the October 2011 Board decision is vacated.

____________________________________________ D. C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals