Citation Nr: 0503038 Decision Date: 02/07/05 Archive Date: 02/15/05 DOCKET NO. 96-19 802 ) DATE ) ) Returned from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, other than post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: To be clarified. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Tenner, Associate Counsel INTRODUCTION The veteran served on active duty from November 1951 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) initially on appeal from a January 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York that denied reopening a claim for service connection for an acquired psychiatric to include PTSD. The veteran filed a timely appeal of the RO decision. This matter was previously before the Board in November 1998, at which time the Board remanded the matter to the RO for additional development. After accomplishing the requested development, to the extent possible, the RO continued the denial of the claim; hence, it has been returned to the Board for further appellate consideration. For the reasons set for the below, this matter is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND An appellant must be afforded the full right to representation in all stages of an appeal. 38 C.F.R. § 20.600 (2003). In this case, it is unclear whether the veteran is represented in pursuing his claims. Historically, private attorney, Thomas N. Sheridan, represented the veteran. Although a VA Form 22a, "Appointment of Attorney or Agent as Claimant's Representative" is not of record, the private attorney represented the appellant in pursuing his claim for service connection, to include representing the claimant during a May 1998 hearing before a Veterans Law Judge (then referred to as a "Member of the Board"). There is an April 1996 letter on file noting that the attorney is representing the veteran. In an August 2003 statement, the veteran indicated that he was unable to contact his attorney, and that the attorney's law firm led him to believe that they were no longer assisting him with his claims. The private attorney, however, has not revoked, in writing, the power of attorney. See generally, 38 C.F.R. § 20.608 (request for withdrawal must be in writing). Further, if the attorney is no longer representing the veteran, there is no indication that the veteran has otherwise been notified of his opportunity to select other representation. The Board notes that when a veteran has appointed a representative, the RO must afford that representative the opportunity to execute a VA Form 646, Statement of Accredited Representative in Appealed Case, prior to certification of the appeal to the Board "in all instances." VA Adjudication Procedure Manual, M21-1, Part IV, para. 8.29 (2004). Accordingly, upon remand, the RO must afford the veteran an opportunity to clarify whether he wants to retain his current representative. If the veteran chooses to discharge his current representative, then he should be afforded a list of representatives who could assist the claimant. Moreover, although the file shows that the RO sent the veteran's and his attorney a copy of the most recent supplemental statement of the case, there is no indication that the veteran's representative was afforded an opportunity to prepare a VA Form 646. The absence of a VA Form 646 indicates that the veteran was not afforded his full right to representation during all stages of the appeal. 38 C.F.R. § 20.600. As such, the appellant's attorney, or any other duly appointed representative, must be given an opportunity to offer written argument on the veteran's behalf, and this argument must be considered by the RO. Further, the veteran and his representative, if any, are hereby notified that the Board Member who conducted the prior hearing is no longer at the Board. Thus, appellant is to be contacted to ascertain if he desires an additional hearing before a Member of the Board. It is noted that there is a transcript of the earlier hearing on file. While the Board regrets that further remand of this matter will further delay an appellate decision, such remand is necessary to ensure compliance with all due process requirements. Accordingly, this matter is REMANDED for the following action: 1. The RO should contact the veteran and his attorney, Thomas Sheridan, and advise each of them of the provisions of 38 C.F.R. § 20.608 regarding withdrawal of representation by a representative in claims before the Board. If the attorney is no longer going to represent the veteran, he should undertaken the written procedures to withdraw. If the veteran is dismissing the attorney, he should do so in writing with notice to the RO. The veteran should be asked to clarify his desire as to representation in this matter and be provided with the appropriate form to do so if the attorney has withdrawn or the veteran has dismissed him. The RO should ensure that all appropriate procedures are followed to afford the veteran representation in the matters on appeal. 2. Thereafter, the RO must afford the veteran's representative, if any, the opportunity to file a VA Form 646 before the case is returned to the Board for further appellate review. 3. Thereafter, the veteran should be contacted to ascertain if he desires an additional Board hearing in view of the absence of the Board Member who conducted the prior hearing. If so, and either a travel board or a videoconference hearing is selected, RO should schedule such in accordance with applicable procedures. If a CO hearing is requested the matter should be returned to the Board for appellate review, in accordance with applicable procedures. The appellant has the right to submit additional evidence and argument on the matter or 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2003).