Citation Nr: 1301102	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  96-45 633	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a program of vocational rehabilitative services for the pursuit of a post-graduate degree under the provisions of Chapter 31, Title 38, of the United States Code.

(Pursuant to BVA Directive 3230, the claim for higher evaluations for bilateral shoulder, elbow, hip, knee, ankle, and hand disabilities as well as left wrist, cervical spine, and lumbar spine disabilities and bilateral upper and lower extremity radiculopathy will be the subject of a separate decision by the Board of Veterans' Appeals.)


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel



INTRODUCTION

The Veteran served on active duty from September 1966 to July 1969.  

This appeal comes to the Board of Veterans' Appeals (Board) on appeal from an April 2005 decision of the Department of Veterans Affairs (VA) Vocational Rehabilitation and Employment Division located in Columbus, Ohio.  Jurisdiction over the appeal currently resides with the RO in Detroit, Michigan.  In December 2008, the Board remanded the appeal for additional development.

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

In December 2008, the Board remanded the appeal to, among other things, provide the Veteran with an RO hearing.  However, while the appeal was in remand status the Veteran neither withdrew this hearing request nor did the RO schedule him for the hearing.  Therefore, the Board finds that another remand to provide the Veteran with an RO hearing.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance).  

The existing record does not include the Veteran's vocational rehabilitation file.  Therefore, while the appeal is in remand status, this file should be added to the record on appeal.  See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA records).

The record reveals that voluminous records have been added to the claims file since the RO issued the October 2005 statement of the case, some of which may be pertinent evidence.  However, the record does not reveal that the Veteran was thereafter provided with a supplemental statement of the case (SSOC).  Therefore, the Board finds that a remand is also required to provide the Veteran with a SSOC.  See 38 C.F.R. § 19.31 (2012) (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued).  

Accordingly, the appeal is REMANDED to the RO/AMC for the following actions:

1.  The RO/AMC should obtain and associate with the record the Veteran's vocational rehabilitation file.  All actions to obtain this file should be fully documented in the record.

2.  After undertaking the above development, the RO/AMC should schedule the Veteran for an RO hearing.  All actions to provide the Veteran with his hearing should be fully documented in the claims file.

3.  After the hearing, the RO/AMC should readjudicate the claim for Chapter 31 benefits.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, he should be provided with a SSOC which contains notice of all the evidence added to the claims file since the issuance of the October 2005 statement of the case as well as notice of all relevant laws and regulations governing the claim.  An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review.

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 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).



_________________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).