Citation Nr: 1325968	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-30 242	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an evaluation in excess of 10 percent for migraine headaches.


REPRESENTATION

Veteran represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1983 to May 2003.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  The Veteran's previously established 10 percent evaluation for migraine headaches was continued therein.  He appealed this determination.

Based on review of the Veteran's claims file as well as his Virtual VA "eFolder," this matter is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  He will be notified if further action is required on his part.


REMAND

This matter unfortunately must be remanded.  Although the Board sincerely regrets the delay this will cause, adjudication cannot proceed at this time.  Additional development is needed to ensure that the Veteran is afforded every possible consideration.

Adjudication shall be undertaken by the Board only after affording the appellant an opportunity for a hearing.  38 U.S.C.A. § 7107(b) (West 2002).  A hearing on appeal thus will be granted if a veteran or his representative expresses a desire for one.  38 C.F.R. § 20.700(a) (2012).  Hearings may be requested when submitting the substantive appeal (VA Form 9) or, subject to the restrictions of 38 C.F.R. § 20.1304 (2012), at any time thereafter.  38 C.F.R. § 20.703 (2012).  38 C.F.R. § 20.1304 (2012) provides a 90 day period following the mailing of notice of certification to the Board during which a hearing may be requested.

In November 2011, the Veteran submitted a document concerning appeal hearing options.  It conveyed his desire for a hearing before a Decision Review Officer (DRO).  A notation from the RO shows that it was accepted in lieu of VA Form 9 as his substantive appeal.  The Veteran was mailed notice in December 2011 that a DRO hearing had been scheduled for January 2012.  However, he failed to appear.  He subsequently submitted a VA Form 9 in March 2012, indicating his desire for a Board hearing at his local VA office.  Notice was mailed to the Veteran that this matter had been certified to the Board in April 2012.

The Board finds that the Veteran's request for a Board hearing at his local VA office was timely.  While not made at the time of his substantive appeal, it was made shortly thereafter.  The request indeed was made before the 90 day period following the April 2012 notification of certification to the Board began.  That the Veteran already has been afforded the opportunity to appear for a hearing and that he did not take advantage of this opportunity is of no consequence.  The hearing scheduled was a DRO hearing whereas the hearing he later requested was a Board hearing.  There further is no prohibition against holding more than one hearing, regardless of type, concerning a matter.  Indeed, an appellant is entitled to one hearing by the aforementioned statute and regulation but is not limited to one hearing by any statute or regulation.  The Veteran's request for a Board hearing at his local VA office thus is granted.  A remand is warranted because the RO schedules this type of hearing.

Given the above, a REMAND is directed for the following:

1.  Schedule the Veteran for a Travel Board hearing before the Board at the earliest available opportunity.  Notification of the date and time of the hearing shall be sent to the Veteran at his last address of record as well as to his representative.

2.  After the hearing, or after the Veteran's failure to appear for or cancellation of the hearing, process this matter for return to the Board in accordance with established procedure.

The Veteran is advised that he has the right to submit additional evidence and argument regarding this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This matter must be afforded prompt treatment.  The law requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Only a decision of the Board is appealable to the Court.  38 U.S.C.A. § 7252 (West 2002).  A remand is in the nature of a preliminary order and does not constitute a decision on the merits by the Board.  38 C.F.R. § 20.1100(b) (2012).