Citation Nr: 1321997 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-36 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for periodontal disease for compensation purposes. 2. Whether new and material evidence has been received to reopen the claim for service connection for mandibular torus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from March 1975 to March 1979 and from June 1979 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal following a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over the Veteran's claims folders currently resides with the RO in Nashville, Tennessee. The RO originally denied the Veteran's claim for service connection for mandibular torus (claimed as a lump on the gum) in a December 1998 rating decision. The Veteran was notified of that decision and did not appeal. The Veteran was denied service connection for periodontal disease, for compensation purposes, in a September 2001 rating decision. He was notified of that decision but did not appeal. The Veteran sought to reopen his claims in October 2008. Accordingly, new and material evidence must be received for the claims to be reopened and the Board has rephrased the issues on appeal as reflected on the title page of this remand. As will be discussed in more detail below, the appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND By way of brief background, in a May 1995 rating decision, the RO denied the Veteran service connection for periodontal disease for compensation purposes. In a June 1995 statement, the Veteran requested that his gum disease be service-connected as noncompensable (0 percent) to allow him to get the frequent expense-free dental treatment he felt he needed. The RO again denied the Veteran's claim in January 1996. In October 1998 the Board denied the Veteran's claim for service connection for periodontal disease for compensation purposes, but granted the Veteran service connection for chronic periodontal disease for VA outpatient treatment purposes only. The Board's decision noted that the Veteran was eligible for "Class II" VA outpatient treatment. Class II eligibility extends to veterans having a noncompensable service-connected dental disorder, subject to various conditions. Generally, claimants are eligible for a one-time correction of noncompensable service-connected dental conditions. See 38 C.F.R. § 17.161(b) (1998 & 2012). As noted above, the RO denied the Veteran's claim for service connection for mandibular torus in a December 1998 rating decision and the claim for service connection for periodontal disease, for compensation purposes, in a September 2001 rating decision. The Veteran did not appeal either decision. Following his most recent claim in October 2008, a May 2009 rating decision denied the Veteran service connection for "periodontal disease/mandibular torus." The Veteran perfected his claims on appeal by submitting a timely VA Form 9 (Appeal to Board of Veterans' Appeals) in August 2010. At that time, he checked the box indicating that he wished a Board hearing in Washington, DC. In May 2013 the Veteran was notified that his hearing in Washington, DC would take place in June 2013. Soon thereafter, the Veteran notified his representative that due to time and travel expense he would be unable to attend the scheduled June 2013 hearing. He requested that he be rescheduled for a Board videoconference hearing. It is a basic principle of veterans' law that the Board shall decide an appeal only after affording the claimant an opportunity for a hearing. 38 U.S.C.A. § 7104 (West 2002). A hearing on appeal before the Board will be granted if the Veteran expresses a desire to appear in person. As good cause has been shown for the Veteran's request to reschedule his hearing, the Board must remand the case to ensure that the Veteran is afforded all due process of law. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.700 (2012). Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a videoconference hearing with a Veterans Law Judge. The Veteran should be notified in writing (at his latest address of record) of the date, time, and location of the hearing. After the hearing is conducted, or if the Veteran withdraws his hearing request or fails to report for the scheduled hearing, the claims folders should be returned to the Board in accordance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ THOMAS J. DANNAHER 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).