Citation Nr: 1322404	
Decision Date: 07/12/13    Archive Date: 07/18/13

DOCKET NO.  09-46 427	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) (to include as due to herbicide exposure).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Young, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from June 1955 to June 1967.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In September 2010 the Veteran failed to report for a requested hearing.  This matter was before the Board in August 2012 when it was remanded for the RO to reschedule the hearing.  A hearing was scheduled in October 2012; the Veteran again failed to report.  In February 2013 this matter was again before the Board, when it was remanded for additional development.

The Board notes that the Veteran has indicated that he has relocated.  Jurisdiction of his claims file should be transferred to the RO located where he now resides.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

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

Review of the record found that this matter is not ready for appellate disposition because of an outstanding hearing request by the Veteran. 

In May 2013 the Veteran called VA's National Call Center and asked if he could have his hearing in Albuquerque, New Mexico because he was on oxygen.  (He had failed to report for a Travel Board hearing scheduled in October 2012.)  He stated that he was unable to attend that hearing due to his health problems.  (See May and July 2013 VA Report of General Information).  This information was forwarded to the Board without RO action.
The Board sought (by telephone) clarification of the Veteran's May 2013 communication.  He explained that he had been in the process of relocating to Albuquerque (due to travel restrictions), and expressed his continued desire for a Board videoconference hearing (from Albuquerque, where he would be able to appear despite his use of oxygen).   

The Board construes the Veteran's statement as a motion to reschedule the hearing before the Board for good cause shown.  38 C.F.R. § 20.702(c)(2).  A governing regulation provides that the Board shall afford the Veteran all reasonable doubt and presume his credibility as to the reasons he did not appear for the hearing or request a postponement of the hearing in a timely fashion.  38 C.F.R. § 20.704(d).  Thus, the Board shall grant his motion to reschedule the Board hearing for good cause shown.  38 C.F.R. § 20.704(c).  

Because Board videoconference hearings are scheduled by the RO, a remand is required.  

 (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

The RO should take appropriate steps to schedule the Veteran for a Board videoconference hearing before a Veterans Law Judge to be held at the Albuquerque, New Mexico, RO at the next available opportunity.  Any indicated development should be undertaken in connection with this hearing request.  Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.

The appellant 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 that are remanded by the Board 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).


_________________________________________________
George R. Senyk
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 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).