Citation Nr: 1126604 Decision Date: 07/15/11 Archive Date: 07/21/11 DOCKET NO. 08-35 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for migraines. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to an increased rating in excess of 20 percent for residuals, traumatic tear biceps, deltoids and triceps, left arm MG II, VII. REPRESENTATION Appellant represented by: Robert L. Chastain, Attorney-at-Law ATTORNEY FOR THE BOARD Timothy S. Hoseth, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, served on active duty from October 1983 to October 1987, and from April 1990 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in October 2007, a statement of the case was issued in September 2008, and a substantive appeal was received in November 2008. The Board observes that the Veteran's October 2007 notice of disagreement included the issues of entitlement to increased ratings for scar of the left upper arm and tinnitus; however, the Veteran subsequently omitted these issues from his November 2008 substantive appeal. Thus, these two issues are not currently in appellate status. 38 U.S.C.A. § 7105(b), (d) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. REMAND In this case, the Veteran contends that he is entitled to service connection for migraines and bilateral hearing loss, as well as an increased rating in excess of 20 percent for residuals, traumatic tear biceps, deltoids and triceps, left arm MG II, VII. The Board notes that the Veteran requested a Board hearing on his November 2008 VA Form 9. In December 2008, the Veteran clarified that he desired a videoconference Board hearing. In February 2011, the RO sent the Veteran a videoconference Board hearing notice letter, which stated that his hearing was scheduled for March 8, 2011. Subsequently, in February 2011, the Veteran's attorney requested that the Veteran's scheduled videoconference Board hearing be postponed. The Veteran's request was granted by the Board in March 2011. Then, in April 2011, the RO sent the Veteran another videoconference Board hearing notice letter, which stated that his hearing was rescheduled for June 10, 2011. However, on June 9, 2011, the Veteran's attorney again requested that the videoconference Board hearing scheduled for June 2011 be postponed for a time that was mutually convenient for himself and the Veteran, stating as a reason that he would be out of town on a previously scheduled trip to the East coast. (In the context of the request to reschedule being sent two days prior to the June 10, 2011 Board hearing, and it does not appear that an August 2011 hearing date had been scheduled, the Board finds that the attorney unintentionally referenced August 9, 2011 as the scheduled Board videoconference hearing date, so will construe the fax request to reschedule as referencing the June 10, 2011 Board videoconference hearing.) The Board notes that, under 38 C.F.R. § 20.704(c) (2010), requests for a change in a hearing date may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown. Such requests must be in writing, must explain why a new hearing date is necessary, and must be filed with the VA office of the official who signed the notice of the original hearing date. Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. Even though the attorney's request to reschedule the Board videoconference hearing was made only two days prior to the Veteran's scheduled June 10, 2011 hearing, the Board finds that the Veteran demonstrated good cause under 38 C.F.R. § 20.704(c), given that his attorney was out of town and unavailable. Thus, in order to afford the Veteran an opportunity to testify at a Board hearing as requested, this case will be returned to the RO in order to reschedule the Veteran for a videoconference Board hearing. In order to avoid any potential scheduling conflicts, the RO should coordinate scheduling the hearing with the Veteran and his attorney for a date and time that is mutually convenient. Because the Veteran's scheduled Board hearings have been postponed twice, the Board emphasizes that any future requests for a change in a scheduled Board videoconference hearing date should be made up to two weeks prior to the scheduled date of the hearing, and will need to specifically show good cause. Accordingly, the case is REMANDED for the following action: The Veteran should be scheduled for a videoconference Board hearing to be held at the RO. The RO should coordinate with the Veteran and his attorney for a date that is mutually convenient. The Veteran and his attorney should be notified of the date and time of the hearing in accordance with 38 C.F.R. § 20.704(b), and a copy of the notice should be included in the claims file. After the hearing is conducted, or in the event the Veteran cancels the hearing or fails to report, the case should be returned to the Board for appellate review. The Veteran and his representative have 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 Supp. 2010). _________________________________________________ J. Parker 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).