Citation Nr: 1315910 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-387 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for diabetes mellitus, including as secondary to service-connected seizure disorder, status-post vagus nerve stimulator insertion. 2. Entitlement to special monthly compensation based on a need for aid and attendance or housebound status. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from July 1976 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has not only reviewed the Veteran's physical claims file, but also the file on Virtual VA, to ensure a total review of the available evidence. The issue of entitlement to an increased disability rating for a seizure disorder has been raised by the record, 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. REMAND On a September 2009 VA Form 9, the Veteran requested a hearing before a Member of the Board (now called a Veterans Law Judge (VLJ)) at the local regional office (Travel Board hearing). At that time, the Veteran indicated that she intended to appeal all the issues listed on the statements of the case and supplemental statements of the case sent by the RO. Subsequently, in September 2011, the Veteran was informed that she could obtain a Board videoconference hearing in lieu of a Travel Board hearing. The Veteran has entered inconsistent expressions as to whether she wants a Board hearing. In a VA Form 9 received in May 2012, the Veteran checked the box to indicate that she did not want a Board hearing. Submitted with the VA Form 9 was a statement in May 2012 by the representative that the Veteran did not desire a hearing before the Board. The representative submitted a Statement of Accredited Representative in Appealed Case (in lieu of FA Form 646) in May 2012 that did not mention or request a Board hearing, but asked for a favorable resolution of the appeal by the Board on the merits. Once again, in a May 2013 brief, the representative noted that on one VA Form 9 the Veteran had requested a Travel Board hearing, and requested a remand for this purpose. The May 2013 brief did not acknowledge or attempt to reconcile the last expression of the Veteran in the VA Form 9 received in May 2012 that she did not want a Board hearing. Nevertheless, as the representative in the May 2013 brief, ostensibly having communicated with the Veteran, specifically requests a remand for a Travel Board hearing, the Board will accept this latest expression of desire for a hearing as a Board hearing request made on behalf of the Veteran. The May 2013 brief by the representative also clarifies that the request was for a Travel Board hearing rather than a videoconference hearing, although the Veteran is still not precluded from electing a Board videoconference hearing. The Veteran should be afforded an opportunity to provide testimony at a Travel Board hearing or, should she elect, a Board videoconference hearing. See 38 C.F.R. §§ 20.700, 20.702, 20.704 (2012). Accordingly, the case is REMANDED for the following action: The Veteran should be scheduled for a Travel Board hearing in accordance with the docket number of this case, unless the Veteran elects a videoconference hearing instead. Notice of the scheduled hearing should be provided to the Veteran at the most recent address of record, and a copy of such notice shall be associated with the claims file. Thereafter, the case should be returned to the Board, if in order. The purpose of this remand is to afford due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ J. Parker 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).