Citation Nr: 1320910	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  09-49 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1. Entitlement to service connection for kidney disease, to include as due to herbicide exposure or as due to service-connected diabetes mellitus.  

2.  Entitlement to service connection for liver disease, to include as due to herbicide exposure or as due to service-connected diabetes mellitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel



INTRODUCTION

The Veteran served on active military duty from June 1971 to August 1975, with further service in United States Naval Reserve.  

The first issue listed comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating action of the Department of Veterans Affairs Regional Office (RO) in Buffalo, New York, which denied a claim for service connection for kidney disease; and from a June 2010 rating decision that denied entitlement to service connection for non-alcoholic fatty liver.

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the appellant if further action is required.  


REMAND

On his December 2009 VA Form 9, the Veteran indicated that he wanted a Board hearing at a local office before a member of the Board.  There is no indication that the Veteran was afforded a hearing before the Board or that he withdrew his hearing request; instead a request for a hearing was again highlighted in the October 2010 representative's statement.  Pursuant to 38 C.F.R. § 20.700 (2012), a hearing on appeal will be granted if an appellant, or an appellant's representative acting on his or her behalf, expresses a desire to appear in person.  The Board shall decide an appeal only after affording the appellant an opportunity for a hearing.  38 U.S.C.A. § 7107(b) (West 2002).  

Additionally, in June 2010, the RO denied a claim for service connection for "nonalcoholic fatty liver" and in October 2010 the Veteran filed a notice of disagreement (NOD) with this decision.  A statement of the case (SOC) has not been issued for this decision.  The Board is required to remand the appeal to the agency of original jurisdiction (AOJ) for the issuance of such a statement of the case.  Manlincon v. West, 12 Vet. App. 238 (1999).  

Accordingly, the case is REMANDED for the following action: 

1. Issue a SOC to the Veteran and his representative with regard to the claim for service connection for liver disease.  The issue should not be certified to the Board unless a sufficient substantive appeal is received.  

2. Schedule the Veteran for a Board hearing at the RO following the usual procedures under 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.704 (2012).  

3. After a Board hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board for appellate review.  

The appellant 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 or by the United States Court of Appeals for Veterans Claims (Court) 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).  

_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court.  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).