Citation Nr: 1329627	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  10-32 955	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, 
New Jersey


THE ISSUE

Entitlement to special monthly compensation (SMC) based on 
the need for aid and attendance (A&A).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel




INTRODUCTION

The Veteran served on active duty from November 1972 to 
November 1976.

She appealed to the Board of Veterans' Appeals (Board/BVA) 
from an April 2009 rating decision of a Department of 
Veterans Affairs (VA) Regional Office (RO).

In December 2012 the Board remanded this claim to the RO via 
the Appeals Management Center (AMC) for further development 
and consideration, including especially to obtain VA 
treatment records - most notably, from the VA Medical Center 
(VAMC) in East Orange, New Jersey - and to reschedule 
the Veteran's VA compensation examination for a medical 
opinion concerning whether she needs regular A&A or 
alternatively is housebound (HB).  There also needed to be 
consideration of an additional, "inextricably intertwined", 
claim that had been raised of entitlement to service 
connection for incontinence secondary to the Veteran's 
service-connected low back strain.  The Board referred, 
rather than remanded, this additional claim.

The Veteran since has indicated she wants a videoconference 
hearing, however, so the Board must again remand her claim 
the RO via the AMC in Washington, DC, to schedule this 
requested hearing.


REMAND

The Veteran has a right to the videoconference hearing she 
has requested before deciding the appeal of her claim.  
Bernard v. Brown, 4 Vet. App. 384, 292 (1993) (citing to 38 
U.S.C.A. § 7104 (West 1991)).  See also 38 C.F.R. §§ 
3.103(a) and (c), 19.9, 19.25, 20.700(a), 20.704 (2012).  
Although this request in December 2012 through her 
representative was more than 90 days after the initial 
certification of the appeal to the Board in March 2012, it 
was before the more recent recertification of the appeal to 
the Board in March 2013 upon completion of the Board's prior 
remand directives.  And the Veteran has asserted that she 
faxed an earlier request directly to the Board but never 
received a response.

As she has shown good cause for failing to request a hearing 
within the 90-day period after her appeal initially was 
certified to the Board, a videoconference hearing before the 
Board must be scheduled before deciding the appeal of her 
claim.  See 38 C.F.R. § 20.1304(b) (2012).  Since the 
RO/AMC, rather than the Board, schedules this type of 
hearing, the Board must remand her claim to schedule her 
hearing.  38 C.F.R. §§ 20.700(e), 20.704, 20.1304 (2012).

Accordingly, her claim is REMANDED for the following action:

Schedule the Veteran for a videoconference 
hearing before the Board at the earliest 
opportunity.  Notify her of the date, 
time, and location of this hearing at her 
address of record.  Put a copy of this 
notification letter in the claims file.  
If she fails to appear for this scheduled 
hearing, without showing good cause, or 
changes her mind and elects not to have 
this hearing, then also document that in 
the file.

She has the right to submit additional evidence and argument 
concerning this claim the Board is remanding.  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).



_________________________________________________
KEITH W. ALLEN
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).