Citation Nr: 1116522	
Decision Date: 04/28/11    Archive Date: 05/05/11

DOCKET NO.  09-42 270A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an increased initial rating in excess of 10 percent disabling for headaches.

2.  Entitlement to service connection for a jaw injury resulting in trauma to teeth numbers 24, 25, 30, and 31.


REPRESENTATION

Veteran represented by:	Judy H. Varnell, Attorney 


ATTORNEY FOR THE BOARD

M. Pansiri, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1986 to April 1988.  

This appeal comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA), Atlanta, Georgia, Regional Office (RO).

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the appellant if further action is required.


REMAND

The Veteran seeks an increased initial rating in excess of 10 percent disabling for service-connected headaches.  He also seeks service connection for a jaw injury resulting in trauma to teeth numbers 24, 25, 30, and 31.  Unfortunately, based on review of the record, the Board finds that a remand is necessary in this case.  Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's increased rating and service connection claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). 

Review of the evidence of record indicates that the Veteran requested a hearing before a member of the Board at a local VA office in his November 2009 Substantive Appeal.  However, following the issuance of an October 2010 Supplemental Statement of the Case, correspondence from the Veteran's representative dated in February 2011 indicates that the Veteran wants a Board hearing by live videoconference regarding his service connection claim for a jaw injury resulting in trauma to teeth numbers 24, 25, 30, and 31.  The claims folder contains no other correspondence with regard to such hearing requests, and the claims folder is negative for any attempts to schedule such hearings.  As such, in order to afford the Veteran due process, to include the opportunity to appear before a Veterans Law Judge for a personal hearing, this case must be remanded so that an appropriate hearing may be scheduled and notice of such hearing may be provided to the Veteran.  

Accordingly, the case is REMANDED for the following action:

Contact the Veteran and inquire if he has a hearing preference (either in-person or video conference).  Then, schedule the Veteran for a personal hearing before a Veterans Law Judge at the earliest available opportunity.  The Veteran and his representative should be notified of the date and time of the hearing, and such notice should be associated with the record. 

After the hearing is conducted, or if the Veteran withdraws his hearing request or fails to report for the scheduled hearing, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.  

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).


_________________________________________________
JENNIFER HWA 
Acting 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).