Citation Nr: 1234935	
Decision Date: 10/09/12    Archive Date: 10/17/12

DOCKET NO.  09-07 954	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in White River Junction, Vermont


THE ISSUE

Entitlement to service connection for residuals of a head injury, to include a traumatic brain injury.


REPRESENTATION

Appellant represented by:	Michael James Kelley, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J.M. Seay, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1967 to February 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont.  

A hearing was held on August 13, 2009 in White River Junction, Vermont, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case.  A transcript of the hearing is in the claims file.

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

As noted in the Introduction, the Veteran testified before the undersigned Veterans Law Judge in August 2009.  However, since that time, the Veteran's case has been remanded for additional development and additional medical evidence has been associated with the claims file.  Furthermore, the Veteran is now represented by a private attorney as reflected in the VA Form 21-22a dated in July 2010.  In a May 2012 statement, the Veteran's attorney requested that the Veteran be afforded a hearing.  VA sent a letter to the Veteran and the Veteran requested a video conference hearing at a local VA office before a member of the BVA.  However, such a hearing has not been scheduled.  The failure to afford the appellant a Board hearing would amount to a denial of due process.  38 C.F.R. § 20.904(a)(3) (2011). Therefore, the Veteran should be scheduled for a hearing before the Board at the RO in White River Junction, Vermont.  

Accordingly, the case is REMANDED for the following action:

The RO should take appropriate steps in order to schedule the appellant for a video conference hearing with a Veterans Law Judge of the Board at the local office in accordance with his request.  The appellant and his representative should be notified in writing of the date, time, and location of the hearing.  After the hearing is conducted, or if the appellant withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures.


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. 2011).



_________________________________________________
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) (2011).