Citation Nr: 1648501	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  10-41 067	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety disorder, and adjustment disorder.

2.  Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder.

3.  Entitlement to total disability evaluation based on individual unemployability as a result of service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Penelope E. Gronbeck, Attorney


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel


INTRODUCTION

The Veteran had active service in the Navy from January 1969 to January 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

A January 2010 rating decision denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder.  The Veteran filed a notice of disagreement in June 2010 and was provided with a statement of the case in September 2010.  The Veteran perfected his appeal with a September 2010 VA Form 9.  

In December 2011, the Veteran testified before Veterans Law Judge (VLJ) James March regarding the issue of entitlement to service connection for an acquired psychiatric disorder.  A transcript of that hearing is of record.

A May 2012 rating decision denied the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder and hypertension and entitlement to TDIU.  The Veteran filed a notice of disagreement in September 2012 and was provided with a statement of the case in June 2013.  The Veteran perfected his appeal with an August 2013 VA Form 9 and requested a Board hearing.

In a September 2014 decision, the Board remanded the claim of entitlement to service connection for an acquired psychiatric disorder for a Board hearing.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).

In February 2015, the Veteran testified before the undersigned VLJ regarding service connection for an acquired psychiatric disorder.  A transcript of that hearing is of record.

A VLJ who conducts a hearing must participate in making the final determination of the claim involved.  38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015).  Appeals can be assigned only to an individual VLJ or to a panel of not less than three members.  See 38 U.S.C.A. § 7102(a) (West 2014).  Thus, when a veteran has had a personal hearing before two separate VLJs during the appeal and these hearings covered a common issue (as they have in this case), a third VLJ is assigned to the decision panel. 

The Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that a veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision.  Arneson v. Shinseki, 24 Vet. App. 379 (2011).  As stated above, the Veteran testified at two hearings before two different VLJs concerning the issue of entitlement to service connection for an acquired psychiatric disorder.  In November 2015, the Veteran was sent a letter explaining to him that he was entitled to a third hearing.  The Veteran returned the form indicating that he waived his right to appear at a third hearing in December 2015.  However, as discussed more fully below, the claims are once again being remanded in order to schedule a hearing.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran's attorney submitted a statement in September 2016 requesting a new video conference hearing before a member of the Board.  As noted above, the Veteran has already testified at separate hearings in December 2011 and February 2015 regarding the claim of entitlement to service connection for an acquired psychiatric disorder.  No hearing has been conducted regarding the claims of entitlement to service connection for hypertension or entitlement to TDIU.

Nevertheless, a basic principle of veterans' law stipulates that the Board shall decide an appeal only after affording the claimant an opportunity for a hearing.  Regarding the claims of entitlement to service connection for hypertension and entitlement to TDIU, the Veteran is entitled to a hearing.  Regarding the issue of entitlement to service connection for an acquired psychiatric disorder, under Arneson he is entitled to a third hearing.  Therefore, in light of the recent request for a hearing, these issues should be remanded in order to schedule the Veteran for a video conference hearing. 

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a videoconference hearing before a VLJ at the RO.  The RO should notify the Veteran and his representative of the date and time of the hearing, in accordance with 38 C.F.R. § 20.704(b).  

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.A. §§ 5109B, 7112 (West 2014).


_________________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2015).
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