Citation Nr: 1315102	
Decision Date: 05/08/13    Archive Date: 05/15/13

DOCKET NO.  08-17 661	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for chronic headaches, claimed as migraines.

2.  Entitlement to an increased evaluation above 30 percent for asthma.

3.  Entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The Veteran served on active duty from February 1981 to November 1988.  She thereafter served a second period of active duty from January 1991 to April 1991.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2007 and August 2008 by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claims for service connection for chronic headaches (claimed as migraines), an increased evaluation above 30 percent for asthma, and a TDIU.

For the reasons discussed below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the appellant and her representative if further action is required on their part.


REMAND

The Veteran's appeal was forwarded to the Board in April 2013.  Prior to this, the Veteran indicated twice that she desired to have a hearing at the RO before a traveling Veterans Law Judge.  (See VA Form 9 Substantive Appeal, dated June 2008 and May 2009.)  Statements from the Veteran's prior representative, Disabled American Veterans, dated in May 2009, and her current representative, The American Legion, dated in April 2013, also confirm her request for a hearing before a Veterans Law Judge sitting at the RO.  The Board notes, however, that no action has since been taken to reschedule the Veteran for her requested hearing.  The case is thus remanded to the RO/AMC to accommodate the Veteran's request.  


Accordingly, the case is REMANDED to the RO/AMC for the following action:

The RO should schedule the Veteran for her requested hearing before a traveling Veterans Law Judge from the Board, sitting at the RO.  The RO should notify the Veteran and her representative of the date and time of the hearing, in accordance with 38 C.F.R. § 20.704(b) (2012).  After the hearing, or if the Veteran fails to report for the scheduled hearing or withdraws her hearing request, the claims file should be returned to the Board in accordance with current appellate procedures.

The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied.  The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument with respect to the remanded matters during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

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 A. HERMAN
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).