Citation Nr: 1317587	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  09-43 915	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a lumbar spine disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel






INTRODUCTION

The Veteran had active military service from August 1977 to August 1980 and November 1980 to April 1984.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

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

The appellant submitted a VA Form 9 in October 2009 in which he indicated that he desires a hearing to be held at his local VA RO. His requested hearing was scheduled before the undersigned Veterans Law Judge in May 2012; however, he failed to appear for his scheduled hearing.  In June 2012, the appellant submitted a statement that he failed to report to his scheduled hearing due to incarceration.  

The Board notes that VA is generally required to attempt to accommodate Veterans in situations where their incarceration might otherwise prevent them from receiving assistance. See e.g. Wood v. Derwinski, 1 Vet. App. 190   (1991); Bolton v. Brown, 8 Vet. App. 185   (1995). In this case, this requirement includes making reasonable efforts to arrange for the Veteran to have a Board hearing while he is still incarcerated, to include a videoconference hearing. This matter must at least be investigated, and thus far has not been.   All documentation of the attempts made should be included in the claims folder.

Accordingly, the case is REMANDED for the following action:

The RO/AMC should contact the facility wherein the Veteran is incarcerated and ascertain whether it might be possible to schedule a hearing, to include whether there are videoconference options that might be utilized. If so, such hearing should be scheduled. If not, Veteran is to be offered an opportunity to make any additional presentation that he might desire and the case should be returned to the Board in accordance with applicable procedures. If additional evidence is offered, readjudication should take place at the AMC/RO. All attempts and information concerning the scheduling of the hearing should be documented in the claims file.

The appellant 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 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).




_________________________________________________
K. PARAKKAL
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).