Citation Nr: 1311518	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO.  11-09 034	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in White River Junction, Vermont


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression.


REPRESENTATION

Appellant represented by:	Vermont Veterans Affairs Section, Military Department


ATTORNEY FOR THE BOARD

M. Riley, Counsel 


INTRODUCTION

The Veteran served on active duty from May 1970 to September 1971.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont.  

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 the March 2011 substantive appeal, the Veteran requested to appear before the Board at a hearing at the RO.  The hearing was scheduled for September 8, 2011; however, on the date of the hearing the Veteran's daughter called and informed the RO that the Veteran was too sick to attend the hearing.  The hearing was rescheduled for November 3, 2011, and notice was mailed to the Veteran in September 2011.  The letter mailed to the Veteran informing him of the new date hearing date was returned as undeliverable and a review of VA's database indicates that the Veteran has a new address.  Therefore, the evidence establishes that the Veteran never received notice of the November 2011 hearing.  Upon remand, VA should contact the Veteran and confirm whether he still wishes to attend a hearing.  If so, the requested hearing should be rescheduled and notice should be sent to the Veteran at his current address of record.  See 38 C.F.R. § 20.704(b) (2012) ("When a hearing is scheduled, the person requesting it will be notified of its time and place...").  

In September 2012, the Veteran appointed a new representative in the current appeal, the Vermont Veterans Affairs Section.  The record does not contain a VA Form 646 from the new representative or any other indication that the claims file was made available to the Veteran's representative after the cases' certification to the Board.  The Veteran is entitled to representation at all stages of an appeal.  See 38 C.F.R. § 20.600 (2012).  Therefore, his new representative should have an opportunity to review the claims file and provide argument in support of the claim for entitlement to service connection for an acquired psychiatric disorder.


Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and confirm whether he still wishes to appear at a hearing before the Board at the RO. 

2.  If the Veteran indicates that he still wishes to appear at a hearing, schedule a hearing before a Veterans Law Judge of the Board at the local regional office, following the usual procedures under 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.704 (2012).  The Veteran must receive notice of the hearing at his current address of record. 

3.  Afford the Veteran's representative the opportunity to review the claims file and complete a VA Form 646 or equivalent, prior to recertifying the appeal to the Board.  If the representative cannot be contacted, the Veteran should be so notified to ensure that his due process rights are protected.

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).


_________________________________________________
MILO H. HAWLEY
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).