Citation Nr: 1304885	
Decision Date: 02/11/13    Archive Date: 02/21/13

DOCKET NO.  10-40 487	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for sinusitis.

2.  Entitlement to service connection for anosmia (also claimed as olfactory impairment).

3.  Entitlement to service connection for right ear hearing loss.


ATTORNEY FOR THE BOARD

S. Coyle, Counsel


INTRODUCTION

The Veteran served on active duty from February 1972 to April 1974.   

These matters are before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In a June 2012 letter, the Veteran raised a claim of entitlement to service connection for posttraumatic stress disorder.  The matter is referred to the agency of original jurisdiction for appropriate disposition.
 
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

The Veteran requested a videoconference hearing in September 2010.  He was informed in October 2010 that the requested hearing was awaiting scheduling.  In June 2012, however, the RO canceled the Veteran's hearing request, because the Veteran is currently incarcerated with a scheduled release date in 2055; thus, RO staff "felt it would be in your best interest to get your pending appeal before the Board ... as soon as possible."  

There is no indication that the Veteran intended to withdraw his request for a hearing.  See 38 C.F.R. § 20.704(e).  In fact, in June 2012, the Veteran reiterated his desire to participate in a videoconference hearing.   Moreover, the RO may not take unilateral action to withdraw a Veteran's request for a hearing, even if its intent is to benefit the Veteran.  Incarcerated veterans are entitled to the same care and consideration given to their fellow veterans.  See Bolton v. Brown, 8 Vet. App. 185, 191) (quoting Wood v. Derwinski, 1 Vet. App. 190 (1991)).  The Court has also cautioned 'those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement.'  Id.; see also Narron v. West, 13 Vet. App. 223 (1999).  



Accordingly, the case is REMANDED for the following action:

Contact the facility at which the Veteran is incarcerated and determine whether a videoconference hearing may take place at that facility, or, if not, whether the Veteran can be transferred to the Nashville RO to attend a videoconference hearing.  All efforts to arrange the hearing, including contacts with the facility where the Veteran is incarcerated, must be documented in the claims folder, and all efforts to tailor VA's assistance to the peculiar circumstances of the Veteran's confinement must be noted.

The Veteran is to be notified in writing of the date, time, and location of the hearing.  He and his representative (if any) must be given time to prepare.  After the hearing is conducted, or if the Veteran withdraws his hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court 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).



_________________________________________________
RONALD W. SCHOLZ
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 Court.  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).