Citation Nr: 1305707	
Decision Date: 02/19/13    Archive Date: 02/27/13

DOCKET NO.  10-28 535	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for right eye cataracts.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel



INTRODUCTION

The Veteran, who is the appellant in this case, had active duty service from August 2007 to June 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied his claim for service connection.  

The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence.  

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 his July 2010 VA Form 9, the Veteran requested a Board hearing at the local regional office.  In October 2012, the RO sent the Veteran notice that he was scheduled for such a hearing in November 2012.  However, the notice letter was returned to the RO as undeliverable.  The returned envelope showed that the Veteran moved, and provided his new address, but stated that the letter could not be forwarded due to expiration of the forward order.  The RO did not resend the relevant correspondence notifying the Veteran of his hearing to the Veteran's correct address, and the Veteran did not report as scheduled for his Travel Board hearing.  

The Court has ruled that there is a "presumption of regularity" under which it is presumed that Government officials have properly discharged their official duties.  See Butler v. Principi, 244 F.3d 1337, 1340 (2001).  Clear evidence to the contrary is required to rebut the presumption of regularity.  See Ashley v. Derwinski, 2 Vet. App. 307 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)).  See, too, Schoolman v. West, 12 Vet. App. 307, 310 (1999) ("'clear evidence to the contrary' is required to rebut the presumption of regularity, i.e., the presumption that the notice was sent in the regular course of government action.").  

The Board also acknowledges that, in connection with the mailing of correspondence and the presumption of regularity in the administrative process, the Court has held that VA may rely on the "last known address" shown of record, see Thompson v. Brown (Charles), 8 Vet. App. 169, 175 (1995), and that the burden is on the appellant to keep VA apprised of his or her whereabouts; if he or she does not do so, there is no burden on the part of the VA to "turn up heaven and earth to find [the appellant]," see Hyson v. Brown, 5 Vet. App. 262 (1993).  However, where a file discloses other possible and plausible addresses,  an attempt should be made to locate the veteran at the alternate known address.  Id.

Although the Veteran did not provide the RO with his correct address, the returned envelope provided the RO with the Veteran's most recent address.  The RO did not make an attempt to provide notice of the hearing at the Veteran's more recent address.  As such, the evidence is sufficient to rebut the presumption of regularity.  The Board finds that he should be afforded another opportunity for a hearing before a Veterans Law Judge of the Board at the RO.  

Accordingly, the case is REMANDED for the following action:

The Veteran should be scheduled for the requested Board hearing.  Notice of the scheduled hearing should be provided to the Veteran at the most recent address of record.  

The purpose of this remand is to afford due process.  The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time.  The Veteran 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 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).



_________________________________________________
K. J. ALIBRANDO
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).