Citation Nr: 1322210	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  06-30 564	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a low back disability.  

2.  Entitlement to service connection for lung cancer, to include as due to bilateral spontaneous pneumothoraxes.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

A. Bordewyk, Associate Counsel


INTRODUCTION

The Veteran served as a member of the Texas Army National Guard for over 22 years until his discharge in May 2006.  Over the course of that service, he had varying periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).  His National Guard Form 22, Report of Separation and Record of Service, indicates that there was no active federal service.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 and February 2007 rating decision issued by the Department of Veterans Affairs (VA), which denied, in relevant part, service connection for a low back disability and service connection for lung cancer.  

The claim was remanded in August 2009 for additional development.  The Veteran died in December 2009.  In February 2010, the Veteran's surviving spouse submitted a request for substitution and in June 2011, the RO accepted her as a substitute claimant.  Therefore, she is now the appellant of his claim.  38 U.S.C.A. § 5121A (West 2002 and Supp. 2012).  

In a March 2011 VA Form 9, the appellant requested a hearing before the Board at the RO.  Although the Veteran was provided with a hearing in September 2008 for his claim, a new hearing for the new appellant has not yet been provided.   

The issue of entitlement to service connection for the cause of the Veteran's death 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.  VA will notify the appellant if further action is required.


REMAND

In a March 2011 VA Form 9, the appellant requested a Board hearing at the RO (Travel Board) in connection with her claim.  

She is entitled to a Travel Board hearing.  38 C.F.R. § 20.703 (2012).  Therefore, a remand is necessary to provide the appellant with the requested hearing.  

Accordingly, the case is REMANDED for the following action:

The appellant should be scheduled for a Travel Board hearing at the RO.

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 2002 & Supp. 2012).



_________________________________________________
JOHN L. PRICHARD
Acting 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).