Citation Nr: 1301731 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-46 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty service from January 1976 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO denied the Veteran's claim. The Veteran requested in her November 2009 substantive appeal (VA Form 9) to appear at a hearing before a member of the Board. After further development of her claim, and per her request, a hearing was scheduled for May 2012. However, the Veteran failed to appear at the hearing and subsequently submitted an explanation for her absence as well as a request for a new hearing date. In July 2012, a member of the Board ruled favorably on the Veteran's motion to reschedule her hearing. A new hearing was scheduled for September 2012, but the Veteran also failed to appear at the subsequent hearing. As she was advised in a July 2012 letter that a failure to appear may be treated as withdrawal of the hearing request, and she has not provided any explanation for her failure to appear at the September 2012 hearing, her hearing request is considered withdrawn. 38 C.F.R. § 20.702(d) (2012). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file revealed no additional evidence pertinent to the appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, to ensure compliance with applicable law. VA will notify the Veteran if further action is required on her part. REMAND Although the Veteran's hearing request is now considered withdrawn due to her failure to appear in September 2012, the claims file will be remanded to the RO to afford her authorized representative the opportunity to prepare a brief. In a May 2010 statement, the Veteran's representative formally requested that, if the Veteran did not appear at a hearing before the Board, VA return the claims file to him for purposes of preparation of a brief. The Board has attempted to facilitate this process administratively without remand, but has been unable to do so due to the distant location of the representative. Pursuant to 38 C.F.R. § 20.700(a), representatives may submit argument in the form of a written brief. As a denial of the representative's May 2010 request would frustrate the purpose of representation (38 C.F.R. § 14.626), remand of the claims file to the RO is warranted. Accordingly, the case is REMANDED to the RO via the AMC for the following action: 1. Provide the claims file to the Veteran's authorized representative for review. 2. Concurrently, request that the Veteran's authorized representative prepare a brief or a VA Form 1-646 in regard to the issue on appeal. 3. Subsequently, review the claims file and ensure that all directed development has been completed in full. If any development remains incomplete, take corrective action. If any additional development is warranted, take all appropriate steps. 4. If necessary, readjudicate the Veteran's claim and prepare a supplemental statement of the case (SSOC) to be provided to the Veteran and her representative. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claim. Her cooperation in VA's efforts to develop this claim is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet.App. 268, 271 (1998). 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). _________________________________________________ WAYNE M. BRAEUER 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).