Citation Nr: 1312405 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-23 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen a service connection claim for a heart disorder, and if so, whether service connection is warranted. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from July 1981 to November 1981, September 1994 to November 1994, June 1998 to February 1999, and from January 2003 to January 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied entitlement to service connection for a heart disorder, finding that new and material evidence had not been received to reopen the claim. In February 2011 the Veteran testified before an Acting Veterans Law Judge who is no longer employed at the Board. A service connection claim for hypertension has been raised by the record (February 2011 hearing transcript), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 During the course of appealing an October 2008 rating decision which denied entitlement to service connection for a heart disorder, finding that new and material evidence had not been received to reopen the claim, the Veteran filed a substantive appeal in July 2009, requesting a Board hearing to be held at his local RO. In February 2011, the Veteran presented testimony at a travel Board hearing held in Philadelphia, Pennsylvania, and a transcript of that hearing is on file. However, the Acting Board Member who conducted that hearing is no longer employed at the Board and a final decision on the merits of the Veteran's claim on appeal was not issued by the Board prior to her departure. Pursuant to 38 C.F.R. § 20.707, the Board Member who conducts a hearing shall participate in the final determination of the claim. The Veteran was informed of this fact in correspondence issued to him by the Board in March 2013 and advised of his right to another Board hearing with someone who would participate in a decision made on appeal. In a signed response from the Veteran dated and received in March 2013, the Veteran elected to attend another Board hearing to be held at his local RO. Travel Board hearings are scheduled by the RO and this case is therefore remanded for the sole purpose of scheduling the Veteran for his requested hearing. See 38 C.F.R. §§ 20.700, 20.704(a) Accordingly, the case is REMANDED for the following action: The RO should take appropriate steps in order to schedule the Veteran for a personal hearing with a Veterans Law Judge of the Board at his local Regional Office (which appears to be located in Philadelphia, Pennsylvania), in accordance with his request received in March 2013. The Veteran should be notified in writing of the date, time and location of the hearing, and this information should be added to the record. After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board, in accordance with appellate procedures. By this remand, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this remand is to afford the veteran due process of law. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ MARJORIE A. AUER 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).