Citation Nr: 1237331 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 10-22 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Palo Alto, California THE ISSUE Whether the timeliness requirements with regard to the substantive appeal required in response to the September 2006 statement of the case (SOC) continuing the denial of the Veteran's request that back travel mileage reimbursement should be waived based on mitigating circumstances. (The issues of whether new and material evidence has been received to reopen a claim for entitlement to an effective date earlier than December 13, 1995, for the grant of service connection for lumbar spine disc disease, entitlement to service connection for left knee disability, left ankle disability, depression, erectile dysfunction, and entitlement to special monthly compensation (SMC) based on the need for aid and attendance (A&A) and being housebound, is being addressed in a separate Board decision) REPRESENTATION Disabled American Veterans ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to May 1974. This case comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs Health Care System (VAHCS) in Palo Alto, California. In that decision, the VAHCS denied the Veteran's request for back travel mileage reimbursement. The Veteran appealed and the VAHCS sent a SOC with a VA Form 9 with notice as to how and when the Veteran should file a substantive appeal. A substantive appeal was not received within the time period prescribed by the applicable regulation, 38 C.F.R. § 20.302(b) (2011), and the VAHCS closed the appeal for failure to respond to a SOC within the period allowed. See 38 C.F.R. § 19.32 (2011). In April 2010, the Veteran filed a notice of disagreement (NOD) as to the VAHCS decision to close the case due to failure to timely file a substantive appeal, the RO issued an August 2010 SOC declining to reopen the claim, and the Veteran filed a timely substantive appeal (VA Form 9) as to this decision. Questions have arisen with regard to the Veteran's representation in this case. The Veteran was initially represented by a veterans service organization but that representation was revoked in October 1997. In November 2005, the Veteran executed a valid appointment form (VA Form 21-22a) appointing a private attorney to represent him without limitation. Subsequently, in October 2006, the Veteran executed a valid appointment form (VA Form 21-22) appointing a veterans service organization as his representative without limitation. The Veteran's private attorney subsequently submitted evidence of his behalf. The Board unsuccessfully attempted to contact the Veteran as to his wishes with regard to representation. The Board contacted the private attorney, who indicated in a July 2012 letter that the Veteran was not a client of her law firm. The service organization submitted a January 2012 brief with regard to the issue on appeal. The Board has therefore listed that organization as the Veteran's representative on the title page. The appeal is REMANDED to the Palo Alto VA Medical Center. VA will notify the Veteran if further action is required. REMAND In his May 2010 substantive appeal, the Veteran requested a Travel Board hearing, and one was scheduled for January 13, 2011. The Veteran was notified of the hearing in a December 2010 letter. The Veteran failed to appear for the hearing. In a July 2011 letter, the Veteran indicated that he was incarcerated and that he would be unable to attend the hearing. He also indicated that he would be released in six months and requested that the hearing be rescheduled. While the Veteran's request to reschedule the hearing was not received until after the date of the hearing passed, it is not clear whether he received timely notice of the hearing. The Board notes that VA has procedures to accommodate incarcerated claimants who request a hearing. See, e.g., Veterans Benefits Administration Adjudication Procedures Manual M21-1 MR (M21-1MR), pt. 1, ch. 4, sec. 1(i) (2011) (noting that the person requesting a hearing is expected to appear in person but "a[n] exception may be made for extenuating circumstances that prevent [a claimant] from attending, such as incarceration or a serious medical condition"). The Board also notes, however, that it has attempted to contact the Veteran at the location where he indicated that he was incarcerated, to no avail. As the Veteran has continued to indicate that he desires a Travel Board hearing and the Board has not been able to contact him with regard to whether he still wants such a hearing, a remand is warranted for the VAMC to attempt to contact the Veteran and schedule a Travel Board hearing if he still desires such a hearing. Accordingly, the case is REMANDED for the following action: Contact the Veteran and ask if he still desires a Travel Board or any other type of Board hearing. If the Veteran continues to request a Travel Board hearing or requests a videoconference hearing, schedule such a hearing. If the Veteran cannot be contacted, prepare a memorandum to the file listing the steps taken to contact him. The VAMC should note that the Board has given similar instructions with regard to the claims being decided simultaneously with this one (listed on the title page), and those claims are being remanded to the RO/AMC, as the RO was the agency of original jurisdiction (AOJ) in that case. The VAMC should therefore coordinate its actions with the RO/AMC to the extent possible. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ H. N. SCHWARTZ 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 the appeal. 38 C.F.R. § 20.1100(b) (2011).