Citation Nr: 1301049	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  02-08 757A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service connected disabilities.

(The issues of entitlement to a compensable rating for bilateral hearing loss prior to November 30, 2009, and a rating in excess of 10 percent for bilateral hearing loss since November 30, 2009, will be addressed in a separate decision)


REPRESENTATION

Veteran represented by: Charles G. Mills, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active service from March 1953 to December 1954.  Before and after such active duty, he had periods of Army Reserve service with active duty for training (ADT) and inactive duty training (IDT); he retired from the Reserve in June 1992.

This appeal comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.  

In July 2009, the Board remanded this claim for additional evidentiary development.  In April 2010, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, seated at the RO.  A transcript of the hearing is associated with the claims file.

In August 2010, the Board again remanded the issue of service connection for an acquired psychiatric disorder for additional evidentiary development.  It has since been returned to the Board for further appellate action.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

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



REMAND

In January 2012, the Board received correspondence from the Veteran's attorney referring to a July 2011 supplemental statement of the case which continued the denial of service connection for an acquired psychiatric disorder.  The attorney requested a Board hearing at the VARO in New York.  

In August 2012, the Board sent the Veteran's attorney a request for clarification regarding his hearing request.  That letter specified that, if no response was received within 30 days, the Board would act to have a hearing scheduled.  No response was received within the time specified.  

In December 2012 correspondence, the Veteran's attorney asserted that the claim for hearing loss should be adjudicated immediately (which is, in fact, the subject of a separate decision issued this date).  He noted that the Veteran had testified extensively on this matter and that no further hearing was needed.  

The Board reads this correspondence as concerning only the hearing loss issue and not the acquired psychiatric claim.  The attorney made no mention at all of the acquired psychiatric claim in the letter and the Board cannot assume that the request for no further hearing in correspondence regarding hearing loss can trump the Veteran's due process right to a hearing on the acquired psychiatric issue.  Therefore, the request for a hearing on the acquired psychiatric disorder has not been withdrawn.

Since such hearings are scheduled by the RO, the case is REMANDED for the following action: 

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

Schedule a Board hearing at the RO in accordance with the docket number of this appeal.  The Veteran should be notified of the time and place to report for the scheduled hearing.  If he desires to cancel the hearing with respect to this issue, he should do so with specificity at the RO.

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. 2012).



_________________________________________________
L. HOWELL
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) (2012).