Citation Nr: 1327209 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-30 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: David Huffman, Attorney ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United States Army from August 1969 to May 1971, including service in Vietnam from January 1970 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that granted the Veteran's claim of entitlement to service connection for posttraumatic stress disorder (PTSD) and assigned a disability evaluation of 10 percent, effective from July 27, 2009 (the date of the claim). The Veteran is appealing the initial rating that was assigned for the PTSD disability after service connection was granted. As such, the guidance of Fenderson v. West, 12 Vet. App. 119 (1999) is for application. The issue of entitlement to an evaluation in excess of 20 percent for the prostate cancer disability and the issues of entitlement to service connection for hearing loss, tinnitus, diabetes mellitus Type 2 and a psychiatric disorder other than PTSD have been raised by the record, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over any one of those issues, and all of them are referred to the AOJ for appropriate action. In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain evidence pertinent to the claim that is not already included in the paper claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In his November 2011 VA Form 9, the appellant requested a Board videoconference hearing. The RO subsequently sent the appellant a letter, in April 2012, and notified him that he had been scheduled for a Travel Board hearing at the RO on May 8, 2012. Prior to that date, the appellant notified VA that he would not be able to attend the hearing and requested that the hearing be rescheduled. A May 1, 2012 email from the appellant's representative, VFW, indicates that the appellant wanted to reschedule his hearing because his attorney would not be able to attend the hearing on May 8, 2012. Thereafter, VFW withdrew its representation because the appellant was represented by an attorney. The RO subsequently notified the appellant that he had been scheduled for a Travel Board hearing on October 25, 2012, but the appellant failed to report for that hearing. The hearing notice letter, dated August 22, 2012, listed the appellant's representative as the DAV; this organization had never represented the appellant. It therefore appears from the evidence of record that the appellant's attorney was never notified of the Travel Board hearing scheduled to take place on October 25, 2012. Under the scenario outlined above, the appellant's due process rights may be implicated. As it appears that the appellant's attorney was not provided with notice of the date and time of the October 2012 Travel Board hearing, there may be prejudice to the Veteran by the lack of such notice. In view of the foregoing, the appeal must be returned to the RO so that the Veteran can be scheduled for a hearing. 38 U.S.C.A. § 7107; 38 C.F.R. §§ 19.76, 20.703, 20.704. Accordingly, the case is REMANDED for the following action: Schedule the appellant for another hearing before a Veterans Law Judge, as the docket permits and specifically: Offer him the option of a Travel Board hearing or a videoconference hearing, whichever he prefers. Notify the appellant and his attorney of the date, time, and place of such a hearing by letters mailed to their respective current addresses of record. Advise the appellant that if he desires to withdraw the hearing request prior to the hearing, he may do so in writing pursuant to applicable provisions. All correspondence pertaining to this matter must be associated with the claims file. After the hearing is conducted, or if the hearing request is withdrawn in writing prior to the hearing being conducted, the case should be returned to the Board in accordance with the applicable procedures. 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 Supp. 2012). _________________________________________________ Thomas H. O'Shay 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).