Citation Nr: 1112167	
Decision Date: 03/28/11    Archive Date: 04/06/11

DOCKET NO.  05-12 023	)	DATE
	)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina


THE ISSUE

Entitlement to recognition of L.M. as the "helpless child" of the Veteran on the basis of permanent incapacity for self- support prior to attaining age 18.


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Associate Counsel






INTRODUCTION

The Veteran served on active duty from November 1965 to September 1969.  He died in September 2002.  The appellant is his daughter.

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2004 rating decision in which the RO in Montgomery, Alabama denied recognition of L.M. as a helpless child of the Veteran on the basis of permanent incapacity for self-support.   In September 2004, the appellant filed a notice of disagreement.  A statement of the case (SOC) was issued in March 2005, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2005.

During the pendency of the appeal, the appellant's claims file was transferred to the jurisdiction of the RO in Winston-Salem, North Carolina, which has certified the appeal to the Board.

For the reasons expressed below, the matter on appeal is being remanded to the RO. VA will notify the appellant when further action, on her part, is required.


REMAND

On a February 2008 VA Form 9, the appellant indicated that she desired a Board hearing at the RO (Travel Board Hearing).  The record reflects that the appellant was scheduled for a Board hearing at the RO in November 2010, but failed to appear.  

In a later statement received in February 2011, the appellant reported that she was unable to attend the scheduled hearing as she was in poor health that day due to her diabetes.  She requested that her hearing be rescheduled.

Pursuant to 38 C.F.R. § 20.700 (2010), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person.  Since the RO schedules Travel Board hearings, and good cause for the appellant's failure to report for the previously scheduled hearing having been shown (see 38 C.F.R. § 20.704(c) (2010)), a remand of this matter to the RO is warranted.  

Accordingly, this matter is hereby REMANDED to the RO for the following action:

The RO should schedule a Travel Board hearing for the appellant at the earliest available opportunity.  The RO should notify the appellant of the date and time of the hearing.  See 38 C.F.R. § 20.704(b) (2010).  After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures.

The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied.  The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).


_________________________________________________
JACQUELINE E. MONROE
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 the appeal.  38 C.F.R. § 20.1100(b) (2010).