Citation Nr: 1327620 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 01-03 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for degenerative disc disease and degenerative joint disease, lumbar spine, with a history of disc herniation, status post L5-S1 diskectomy, claimed as secondary to service-connected disabilities of the knees and hips. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for chronic right and left hip strains, assigning each a 10 percent evaluation effective March 27, 2001; denied service connection for degenerative disc and joint disease, lumbar back, with history of disc herniation, status post L5-S1 diskectomy and major depressive disorder (MDD); and denied compensation under 38 U.S.C. § 1151 for pneumonia, chronic obstructive pulmonary disease, and possible congestive heart failure. In March 2003, the Veteran submitted a notice of disagreement with the denials of service connection and compensation under 38 U.S.C. § 1151. She subsequently perfected her appeal for the low back claim in May 2004. In October 2004, the Veteran, in Cleveland, Ohio, presented sworn testimony during a Board videoconference hearing, which was chaired by the undersigned Veterans Law Judge in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims file. In March 2005, May 2009, and August 2010, the Board remanded the Veteran's claim of entitlement to a low back disability to the Appeals Management Center (AMC) for further evidentiary development, including providing the Veteran additional notice, attempting to obtain any outstanding treatment records, scheduling her for a new Board hearing, and readjudicating the claim after review of all new evidence. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC provided the Veteran with additional notice and obtained all identified treatment records. Additionally, the Veteran was scheduled for a Board hearing in July 2010, which she failed to report for. Finally, the case has been readjudicated since the most recent Board remand - in March 2011, February 2012, and December 2012 supplemental statements of the case (SSOCs). Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on her part is required. REMAND As noted above, the Veteran attended a Board videoconference hearing before the undersigned Veterans Law Judge in October 2004. In March 2009, the Veteran requested a second hearing before the Board. In light of the time elapsed since the last hearing and the possibility of new evidence being presented, the Board granted this request and remanded the appeal to schedule a new Travel Board hearing in May 2009. The Veteran was scheduled for the new hearing in July 2010. She failed to report for her hearing and provided no apparent reason for her failure to report. As such, the Board considered her request for a new hearing withdrawn and remanded the case for other reasons in August 2010. However, subsequent to the Board's August 2010 remand, VA received correspondence from the Veteran's congressman, including a privacy release form completed by the Veteran in July 2010. On the privacy release form, the Veteran indicated that she had been unable to attend her scheduled hearing because of illness. She also indicated that she attempted to contact her representative to reschedule the hearing, but was unsuccessful. As this correspondence constitutes good cause for the Veteran's failure to appear for her July 2010 Board hearing, the Board finds that she is entitled to a rescheduling of her missed hearing. See 38 C.F.R. §§ 20.700(a), 20.704(d), 20.1304(a) (2012). The case is therefore remanded to the RO so that it may schedule a Travel Board hearing and send notice of the hearing to the Veteran and his representative. The Veteran has a right to provide hearing testimony on appeal. See 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700(a) (2012). In accordance with her request, the Veteran must be provided an opportunity to present testimony during a hearing before a member of the Board. See 38 C.F.R. § 20.704 (2012). The Board also notes that the most recent SSOC, dated in December 2012, was returned as undeliverable. As this raises the question of whether the Veteran's address has changed, the RO/AMC should verify the Veteran's address before sending her notification of the scheduled Board hearing. See 38 C.F.R. § 20.704(b) (2012). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should contact the Veteran's representative and attempt to contact the Veteran at any other phone numbers or contact points of record in order to verify the Veteran's current mailing address. The United States Postal Service should be contacted, if necessary. All attempts to identify a current mailing address should be documented in the claims file. 2. The RO should clarify with the Veteran whether she desires a videoconference or Travel Board hearing. The appropriate hearing should be scheduled. If she does not respond to the request for clarification, she should be scheduled for a Travel Board hearing, in conjunction with her March 2009 request for same. The RO must notify the Veteran and her representative of the date and time of the scheduled hearing in accordance with 38 C.F.R. § 20.704(b) (2012). This notification must be documented in the claims file and sent to the address verified or obtained in the first remand directive. After the hearing has been held, or if the Veteran withdraws her hearing request or fails to report for the scheduled hearing, the claims folder should be returned to the Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 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). _________________________________________________ BARBARA B. COPELAND 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 Court. 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. See 38 C.F.R. § 20.1100(b) (2012).