Citation Nr: 1300435	
Decision Date: 01/07/13    Archive Date: 01/11/13

DOCKET NO.  10-44 159A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Whether there is new and material evidence to reopen a claim for service connection for residuals of a head injury, including organic brain syndrome with memory loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel



INTRODUCTION

The Veteran served on active duty from August 1975 to August 1978.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

The Board is remanding this claim to the RO via the Appeals Management Center (AMC) because, as will be explained, the Veteran has requested the rescheduling of his hearing before the Board.


REMAND

In his November 2010 substantive appeal (on VA Form 9), the Veteran indicated he wanted a hearing at the RO before a Member (Veterans Law Judge) of the Board.  This type of hearing is often and more commonly referred to as a Travel Board hearing.  The RO sent him a letter in August 2012 concerning his hearing request, indicating his hearing had been scheduled for September 19, 2012.  The letter also apprised him of the location and time of the hearing and provided other helpful information.  He failed to appear for the scheduled hearing, however, which ordinarily would result in the Board deeming his hearing request withdrawn.  38 C.F.R. § 20.704(d) (2012).

But in a statement since received at the Board in December 2012, he indicated that he had failed to appear for his scheduled hearing because he did not receive his forwarded mail by the United States Postal Service in a timely manner.  He explained that in March 2011 he had moved from Corpus Christi, Texas, to Brownsville, Texas, and assumed he had made the proper arrangements for forwarding his mail to his new address.  But, according to him, he did not receive notice of his scheduled hearing until November 18, 2012, so not until well after the hearing was to be held.  After apologizing sincerely for this delay in the forwarding of his mail, he requested that his hearing be rescheduled.

He has provided sufficient justification (i.e., the required showing of "good cause") for failing to appear for his previously scheduled hearing, so his hearing must be rescheduled before deciding his appeal.  38 C.F.R. §§ 20.700(a), 20.704.

Accordingly, the claim is REMANDED for the following action:

Reschedule the Veteran's Travel Board hearing at the earliest available opportunity.  Also inform him that he may have a videoconference hearing before the Board, instead, if available sooner, it would comport with his schedule, and he agrees to this other type of hearing before the Board.  If, for whatever reason, he decides he no longer wants a Travel Board hearing (or, as an alternative, a video-conference hearing), then this must be documented in his claims file, also if he again fails to report for his hearing.  Notify him of the date, time and location of his hearing and put a copy of this letter in his claims file.  

He has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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. 2012).



_________________________________________________
Keith W. Allen
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) (2012).