Citation Nr: 1332985 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 11-02 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for vertigo. 4. Entitlement to service connection for a psychiatric disorder to include PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to January 1967, with service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied service connection for the enumerated issues. Additionally an appealed issue of entitlement to service connection for ischemic heart disease was granted and is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board notes that while entitlement to TDIU had been denied by the RO in rating decisions, most recently in a March 2013 rating codesheet, the Veteran has submitted private medical evidence in August 2013 including an August 2012 record that again raises this issue. It is thus referred to the RO to further address. The issues of entitlement to service connection for bilateral ear damage, aortic aneurysm, abdominal aneurysm, diabetes, neuropathy, dizziness, lightheadedness, shortness of breath, fatigue and weakness of the legs as secondary to service connected ischemic heart disease and entitlement to an earlier effective date for a 100 percent disability rating have been raised by the record, via a written statement submitted by the Veteran in September 2012, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Unfortunately the Board finds that due process considerations require remand of this appeal. First there appears to still be a pending issue of entitlement to service connection for a psychiatric disorder, to include PTSD, that has not recently been addressed by the RO. Review of VACOLS suggests that this claim was granted following the receipt of additional evidence on March 22, 2012. However review of the adjudicatory actions available in the claims file and electronic record (including Virtual VA and VBMS) suggests this matter remains pending and is listed as nonservice-connected in the most recent rating of March 2013. The May 2012 supplemental statement of the case (SSOC) said that PTSD was to be separately addressed, but there is no subsequent actions shown to have been taken. Thus the RO must clarify whether this issue remains on appellate status, and associate with the record any adjudicatory action deemed to resolve this issue. Next the Veteran appears to have an outstanding request for a video conference hearing. Of note he requested such a hearing in his January 2011 substantive appeal. Such hearing was scheduled and a November 2012 letter was sent to him notifying him of such a hearing scheduled for December 11, 2012. In response, the Veteran's representative sent a letter stating that the matter was not ready for a hearing yet, and pointed out that a supplemental statement of the case (SSOC) or rating decision needed to be sent to include review of additional evidence received since the last SSOC was issued in May 2012. Subsequently the December 2012 hearing was marked by the RO as having been cancelled by the Veteran. Most recently the Veteran has requested that he be rescheduled a video conference hearing in communications submitted in August 2013, including in a motion to advance the case on the docket (AOD). He requested if possible that the hearing be held before the end of August 2013. However the wording of the request did not indicate that such request was to be automatically withdrawn if not held before the end of August 2013. Of note he stated in the August 2013 AOD motion, "In my letter dated 8/05/13 requesting to expedite my claim, I am asking for a video conference hearing if possible in August so my daughter can attend. She can be very supportive of my case but is available only for the remainder of August." Thus the hearing request remains open and pending. The Board further notes that while the November 2012 letter from the representative essentially requested a postponement of the hearing due to the case not being ready, it did not withdraw the Veteran's hearing request. Thus the RO should take steps to again schedule a video conference hearing. Pursuant to 38 C.F.R. § 20.700 (2012), a hearing on appeal will be granted to a Veteran who requests a hearing and is willing to appear in person. See also 38 U.S.C.A. § 7107 (West 2002). Videoconference hearings are scheduled by the RO. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Clarify whether the claim for service connection for a psychiatric disorder has been resolved by adjudicatory action and if so, associate such adjudicatory action resolving this issue in the claims file or electronic record. If not resolved, it must again be added as an appellate issue with appropriate adjudicatory actions undertaken. 2. Thereafter, following the completion of the above, the RO should schedule the Veteran for a videoconference hearing, and ensure that notice of the hearing is sent to his current address. The case should then be processed in accordance with established appellate procedure. 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). _________________________________________________ J. A. MARKEY 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).