Citation Nr: 1124587 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 09-11 348A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE 1. Entitlement to education benefits under the Montgomery G.I. Bill - Active Duty, Chapter 30, Title 38, United States Code. 2. Entitlement to education benefits under the Montgomery GI Bill - Selected Reserve, Chapter 1606, Title 10, United States Code REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The veteran served on active duty from January 1967 to December 1970. He reports additional training/duty in the reserve, which is not verified in the current record. These matters come to the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Newark, New Jersey otherwise has jurisdiction of the matter and the case came to the Board from that RO. The record reflects that the Veteran requested a Travel Board hearing in his October 2008 VA Form 9. However, the record reflects that the Veteran failed to appear for his hearing scheduled in April 2011 and neither he nor his representative has offered an explanation for such failure. Accordingly, the Board hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2010). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The record reflects that the Veteran also requested a hearing before a decision review officer (DRO) in his October 2008 VA Form 9. In addition, in an April 2009 VA form 21-4138, the Veteran again requested a hearing before a DRO. In August 2010, he was sent a letter from the Buffalo RO, informing him that, given the benefits requested, he was not entitled to DRO consideration or review. He was told that his appeal would be handled in the traditional appeals process. No mention was made, however of an opportunity to have a hearing before a hearing officer or other similar individual at the RO. He indicated that he wanted his RO hearing before the Board hearing. He did not ever withdraw the request for an RO hearing. There is no evidence in the record that the Veteran was scheduled for this hearing. Accordingly, the case must be returned to the RO to schedule such a hearing. Additionally, the Veteran has reported that in addition to his active duty, he was in the Reserve until 1995. The statement of the case (SOC) provided indicated that he was not in the Selected reserve, so that the Reserve time was not qualifying. The record before the Board does not contain the claims folder or other verification of the type of Reserve training, to include whether he was ever recalled to active duty, had any extended active duty for training, or was merely on the books, ready for call-up as needed. Additionally the documents before the Board report that he used some VA educational benefits under Chapter 34 of Title 38, U.S. Code. That program has since been discontinued, but the record before the Board does not reflect where that information was found, or how that is known. A complete record must be before the Board prior to entry of a decision. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should obtain the Veteran's claims folder. It should be examined to ascertain what type of Reserve duty/training he had, when he had the duty/training, and the termination date of his time in the Reserve. If this information is not in the claims folder, attempts should be made to obtain this information. Appellant should be requested to provide any assistance needed, including copies of any orders he might have. All attempted development should be set out for association with the claims folder and the education folder currently before the Board. It should also be determined whether the use of Chapter 34 benefits can be determined from the claims folder, and if not additional documentation as to how this knowledge was obtained should be undertaken. 2. The RO should must schedule the Veteran for the requested hearing before RO personnel. The Veteran and his representative must be provided proper notice of the date and time of the scheduled hearing and the notification must be documented in the claims file. After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures. If the Veteran no longer desires a hearing he should so indicate in writing to the RO. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ 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) (2010).