Citation Nr: 1315358 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-00 637 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 10 percent disabling for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from July 1970 to March 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the RO in Waco, Texas. In a February 2012 decision, the Board denied an increased rating for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In an Order dated in August 2012, pursuant to a Joint Motion for Remand, the CAVC vacated the Board's February 2012 decision and remanded this issue back to the Board for development consistent with the Joint Motion. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 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 his December 2008 substantive appeal, the Veteran indicated his request for a hearing before the Board. Subsequently, in February 2011, the RO sent a notice to the correctional facility where the Veteran is incarcerated and informed him that a Board hearing was scheduled at the Waco RO on March 16, 2011. The RO asked the Veteran to inform the RO if he could not attend the hearing and provide a reason for not being able to attend. A copy of this letter is of record and is annotated that he failed to appear for the hearing. Two submissions were received from the Veteran, drafted on March 17, 2011 and March 21, 2011, respectively, and received by the RO on March 22, 2011, after the scheduled hearing date. These submissions indicated that the Veteran was unable to attend the March 16, 2011 hearing because the warden of the correctional facility had failed to arrange for transportation to the hearing location. The Veteran requested that the hearing be rescheduled. In the February 2012 decision, the Board found that good cause had not been shown for the Veteran's failure to appear, and that the hearing should not be rescheduled. The basis for the Joint Motion of the parties to the CAVC appeal is that the Board did not adequately explain why the Veteran's post-hearing explanation for his failure to appear for a scheduled Board hearing did not constitute good cause, and thus why his request to be rescheduled for a Board hearing was denied. The Board is bound by the findings contained in the Joint Motion, as adopted by the CAVC. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the CAVC's prior action with respect to the same claim). In order to ensure that all reasonable efforts have been exhausted to provide the Veteran due process in the adjudication of his appeal, the Board finds that additional development should be attempted to determine whether the Veteran's assertions as to good cause are accurate, and whether an additional attempt should be made to afford the Veteran a Board hearing. Accordingly, the case is REMANDED for the following action: 1. To address the concerns of the JMR, contact the appropriate parties at the Michael Unit of the Texas Department of Criminal Justice in Tennessee Colony, Texas, or other designated authority to determine: (A) if transportation to the RO can be arranged for Veterans to attend hearings; and if so, what the appropriate procedures are for arranging such transportation (if any) or (B) if transportation cannot be arranged, determine if video or tele-conference capabilities exist within the detention facility where the Veteran is located, and if so, whether arrangements can be made to schedule the Veteran to testify via videoconference or teleconference for a travel board hearing before a Veterans Law Judge at the RO on the next available date, with the representative appearing before a Veterans Law Judge while at the RO. 2. If it is determined that neither option is feasible, then the RO must document in writing and associate with the claims file all efforts expended to afford the Veteran a Board hearing despite his incarceration and the case should be returned to the Board. A written statement may be submitted by the Veteran explaining what he would have told the Board which will be reviewed, in detail. A Supplemental Statement of the Case should be issued, if needed. 3. If a travel Board hearing is scheduled, in that the request to reschedule was received, then notice should be sent to the Veteran and the detention facility in accordance with the applicable regulations, and in accordance with the requirements of the detention facility. The Veteran is responsible for making arrangements for his transportation to the RO and/or arranging the videoconference or teleconference hearing from within the prison and the RO, not the VA. The Veteran 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 appeal 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). _________________________________________________ JOHN J. CROWLEY 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).