Citation Nr: 1332669	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  12-08 204A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for degenerative joint disease of the cervical spine.

2.  Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for degenerative joint disease of the lumbar spine.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from February 1986 to July 1987.

This matter comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The issue of entitlement to a compensable evaluation for bilateral hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

In the Veteran's April 2012 substantive appeal to the Board, he requested to testify at a hearing at the RO before a Veterans Law Judge (VLJ) or at a hearing by videoconference.  See 38 C.F.R. § 20.700 (2012).  He was scheduled for a videoconference hearing before a VLJ in June 2013 to which he did not appear.  If an appellant fails to appear for a hearing, a motion for a new hearing date following a failure to appear for the scheduled hearing must be in writing, must be filed within 15 days of the originally scheduled hearing date, and must explain why the appellant failed to appear for the hearing and why a timely request for a new hearing date could not have been submitted.  38 C.F.R. § 20.704(d) (2012).  The request for a new hearing will not be granted unless the failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date.  Id.  

In this case, the Veteran informed the RO in writing over three months after the scheduled hearing that he did not appear because he received the notification of the hearing after schedule hearing date due to confusion with his correspondence.  The Board finds that this constituted good cause for missing the hearing and for the written request for a new hearing not being timely.  See 38 C.F.R. § 20.704(d).  Further, in this situation he could not have submitted notice prior to the hearing.  See id.  The Veteran has not since withdrawn his request for a hearing.  As such, the claim must be remanded so that the Veteran may be provided with a hearing.

Accordingly, the case is REMANDED for the following action:

The Veteran should be scheduled for a videoconference hearing at the RO, in accordance with the procedures set forth at 38 C.F.R. §§ 20.700(a), 20.704(a), as per the Veteran's request, and as the docket permits.

The appellant has the right to submit additional evidence and argument on the matter or 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 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).

_________________________________________________
STEVEN D. REISS
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).