Citation Nr: 1126327 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 07-00 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from October 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. 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 shows that on VA Form 21-4138, dated in October 2009, the Veteran requested a Travel Board hearing before a member of the Board at the RO. The Board remanded the Veteran's case in January 2010 so that the hearing could be scheduled. The hearing was scheduled to be held in March 2010. However, the record shows that the Veteran is currently incarcerated and was unable to appear for the hearing. The AMC returned the Veteran's case to the Board due to the Veteran's failure to appear for the hearing. In a June 2011 written brief presentation, the Veteran's representative stated that the AMC did not comply with the January 2010 remand as there was no record of VA attempting to meet with the Veteran or contacting the Indiana Department of Corrections regarding whether it would be possible for the Veteran to attend a hearing at the RO. The United States Court of Appeals for Veterans' Claims ("Court") has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. In this respect, the Court has also held that when a Veteran is incarcerated, VA must tailor its assistance to meet the peculiar circumstances of confinement, as such individuals are entitled to the same care and consideration given to their fellow veterans. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); accord Bolton v. Brown, 8 Vet. App. 185, 191 (1995). If the RO/AMC determines that the Veteran cannot attend the hearing, it should ascertain whether he wishes his representative to appear at the hearing on his behalf. On remand, the AMC/RO should send the Veteran a letter asking him to confirm whether he still wishes to testify at a hearing. It should be explained to the Veteran that while an in-person hearing might not be possible, he may be able to have his representative appear on his behalf. If the Veteran wishes to proceed with a hearing, the RO/AMC should make appropriate efforts to arrange for a hearing to be held to include contacting the appropriate officials at the Veteran's correctional facility to see if arrangements may be made for the Veteran to attend the hearing. If the RO/AMC finds after further investigation that it would not be feasible to arrange such a hearing, the Veteran must be notified of this fact and of the efforts that were made to that end. Documentation of such notification must be associated with the claims file. Accordingly, the case is REMANDED for the following action: The Veteran should be sent a letter asking him whether he still wishes to testify at a hearing before the Board. The letter must explain to the Veteran that while an in-person hearing might not be possible, he may wish to ask his representative if the representative may attend the hearing on his behalf. If the Veteran wishes to proceed with a hearing, the RO/AMC should make reasonable efforts to arrange for a hearing to be held to include contacting the appropriate officials at the Veteran's correctional facility to see if arrangements may be made for the Veteran to attend the hearing. If the RO/AMC finds, after investigation into this matter, that it would not be feasible to arrange such a hearing, the Veteran must be notified of this fact and of the efforts that were made to that end. Documentation of such notification must be associated with the claims file. 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. 2009). _________________________________________________ KATHLEEN K. GALLAGHER 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).