Citation Nr: 1313664	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  12-05 876	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan



THE ISSUE

Entitlement to service connection for amyloidosis of the lung.



REPRESENTATION

Appellant represented by:	Marine Corps League



ATTORNEY FOR THE BOARD

K. Conner, Counsel



INTRODUCTION

The appellant served on active duty from June 1956 to June 1958, and from August 1961 to August 1965.  He was a member of the Michigan Air National Guard from February 1972 to May 1992.  

This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied service connection for amyloidosis of the lung.

In April 2013, the appellant's representative filed a motion to advance the case on the Board's docket in light of the appellant's age.  In April 2013, the Board granted the motion pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

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

On his February 2012 VA Form 9, Appeal to Board, the appellant indicated that he wished to appear at a Board hearing before a Veterans Law Judge sitting at the RO.  

In March 2012, the RO sent the appellant a letter advising him that he had been placed on the list of persons wishing to attend an in-person Travel Board hearing at the RO.  He was also given the option of electing a Board videoconference hearing, a Board hearing in Washington, DC, or withdrawing his hearing request.  The record contains no indication that the appellant responded to the RO's letter.  

Nonetheless, in August 2012, the RO sent the appellant a letter indicating that he had been scheduled for a Board videoconference, to be held in September 2012.  The appellant thereafter expressly indicated that he wished to attend an in-person Travel Board hearing.  The appellant has still not yet been afforded his requested hearing.  

Under applicable regulation, a hearing on appeal will be granted if a Veteran, or his or her representative, expresses a desire to appear in person.  38 C.F.R. § 20.700 (2012).  Indeed, the importance of responding to a request for a hearing is recognized under 38 C.F.R. § 20.904(a)(3) (2012), as a Board decision may be vacated when there is a prejudicial failure to afford an appellant a personal hearing.  Although a videoconference or electronic hearing may be voluntarily elected in lieu of an in-person hearing, if an appellant declines to participate in such an alternative hearing, his opportunity to participate in the in-person hearing shall not be affected.  38 C.F.R. § 20.700(e).  

In order to ensure full compliance with due process requirements, therefore, an in person Travel Board hearing must be scheduled, unless the appellant subsequently elects to attend a videoconference hearing, Central Office hearing, or withdraw his Board hearing request entirely.  As Travel Board hearings are scheduled by the RO, a remand is necessary.  See 38 C.F.R. §§ 20.700, 20.704(a) (2012).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

The appellant should be scheduled, in accordance with appropriate procedures, for a personal hearing before a Veterans Law Judge at the RO.  38 U.S.C.A. § 7107 (West 2002).  A copy of the notice to the appellant and his representative of the scheduling of the hearing should be placed in the record, keeping in mind the 30-day advance notice requirement specified at 38 C.F.R. § 19.76 (2012).  If needed, a waiver of that period may be solicited as indicated.

The case should then be returned to the Board for further appellate consideration, if in order.

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).


_________________________________________________
MICHAEL D. LYON 
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).