Citation Nr: 1329849 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-26 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain. 2. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the right knee. 3. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the left knee. 4. Entitlement to an initial rating in excess of 10 percent for internal and external hemorrhoids. 5. Entitlement to service connection for left heel tendonitis with pain in the left shin. ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from February 2003 to May 2004, September 2005 to December 2006, and from July 2007 to October 2008 with an additional 4 months and 12 days of prior unverified active duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran was scheduled to appear for a hearing with a Veterans Law Judge (VLJ) in July 2013. He failed to report for this hearing. The Veteran has provided no explanation for his failure to report and has not since requested that the hearing be rescheduled. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2012). In a December 2010 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and denied a total disability rating based on unemployability due to service-connected disabilities (TDIU). The Veteran indicated his disagreement with these issues and a statement of the case was issued in October 2012. The Veteran did not, however, file a timely VA Form 9 or its equivalent. See Archbold v. Brown, 9 Vet.App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). These issues are therefore not in appellate status and are not before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND The record reflects that the Veteran requested that he be scheduled for a hearing before a Decision Review Officer (DRO) in his June 2010 substantive appeal. In a December 2010 statement, the Veteran indicated that he had recently moved and provided his new address. The record reflects that the Veteran was scheduled for a hearing before a DRO on March 28, 2012, and the RO sent him a letter on March 8, 2012 notifying him of the date and time of his scheduled hearing. The Veteran failed to report for the proceeding; however, the record indicates that the notification letter was mailed to his previous address. As such, it is not clear that he received notice of the scheduled hearing. As noted in the Introduction, the Veteran was also scheduled to appear for a hearing before a VLJ. Unlike his scheduled DRO hearing, the record reflects that the notification letter for this hearing was mailed to the Veteran's most recent address of record. However, he has provided good cause for the failure to report. The failure to afford the Veteran a hearing before a DRO would amount to a denial of due process. 38 C.F.R. § 20.904(a)(3) (2012). Therefore, the Veteran should be scheduled for a hearing before a DRO and be notified of the scheduled proceeding using his current address. Accordingly, the case is REMANDED for the following action: 1. The AOJ should take appropriate steps to verify the Veteran's current mailing address. 2. The AOJ is at liberty to confirm whether the appellant wants a DRO hearing or a Board hearing or both. Then, as appropriate: The RO should then take appropriate steps to schedule the Veteran for a personal hearing with a DRO in accordance with his request. The AOJ should schedule the appellant for a Travel Board hearing. . The Veteran has the right to submit additional evidence and argument on the 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ H. N. SCHWARTZ 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. 38 C.F.R. § 20.1100(b) (2012).