Citation Nr: 1310546	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  10-46 483	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia


THE ISSUE

Whether new and material evidence has been received to reopen a claim for service connection for a right leg disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from July 1974 to July 1977.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 RO decision that in pertinent part, determined that new and material evidence had not been submitted to reopen a previously denied claim for service connection for a right leg disability.

Because the prior denial of the claim for service connection for a right leg disability was not appealed, new and material evidence is required to reopen this claim and warrant further consideration of it on its underlying merits.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  Regardless of how the RO ruled on the question, the Board must determine for purposes of jurisdiction whether there is new and material evidence sufficient to reopen the claim.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted).

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 a recent March 2013 VA Form 9 (substantive appeal), the Veteran indicated that he wants a hearing before a Veterans Law Judge (VLJ) of the Board at the RO, i.e., a Travel Board hearing.  He is entitled to this hearing before the Board adjudicates his appeal.  See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. §§ 20.700(a) and (e), 20.704 (2012).  This hearing must be scheduled by the RO.

Accordingly, the case is REMANDED for the following action:

1.  Schedule a Travel Board hearing at the next available opportunity.  Notify the Veteran of the date, time, and location of this hearing, and put a copy of this letter in his claims file.  

2.  Once the Veteran has been afforded this requested hearing, or in the event that he withdraws this hearing request or fails to appear on the date scheduled, return the file to the Board for further appellate consideration of his claim.

The appellant 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).



_________________________________________________
KELLI A. KORDICH
Acting 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).