Citation Nr: 1340796 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-02 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased evaluation above 10 percent for testicular carcinoma with metastasis of lung, status post right orchiectomy. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic psychiatric disorder, claimed as anxiety disorder. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to September 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim for an increased evaluation above 10 percent for testicular carcinoma with metastasis of lung, status post right orchiectomy, and determined that new and material evidence had not been submitted to reopen a previously denied and final claim of service connection for a psychiatric disorder (claimed as generalized anxiety disorder). For the reasons discussed below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and his representative if further action is required on their part. REMAND In the Veteran's substantive appeal that was received by VA in January 2011, he expressly requested to have a hearing before a traveling Veterans Law Judge from the Board, sitting at the RO. Afterwards, in correspondence dated August 2, 2011, his representative indicated that the Veteran was withdrawing his hearing request. The case was sent to the Board on August 26, 2011 for appellate adjudication. However, the claims file shows that shortly thereafter, in a letter dated August 30, 2011, the RO informed the Veteran that it had placed him on a list of persons desiring a hearing at the RO before a traveling Veterans Law Judge. It is therefore evident that the Veteran had resubmitted another Travel Board hearing request since August 2, 2011 (either in person or in writing, but not on record), which supersedes his prior withdrawal of his hearing request. A basic principle of veterans' law stipulates that the Board shall decide an appeal only after affording the claimant an opportunity for a hearing. 38 U.S.C.A. § 7104 (West 2002). A hearing on appeal before the Board will be granted if an appellant expresses a desire to appear in person. 38 C.F.R. § 20.700 (2012). Given the Veteran's timely request for a hearing at the RO before a traveling Veterans Law Judge from the Board, a remand of the present appeal is necessary to afford him the requested Board hearing. Accordingly, the case is REMANDED to the RO/AMC for the following action: The RO should schedule the Veteran for his requested hearing before a traveling Veterans Law Judge from the Board, sitting at the RO. The RO should notify the Veteran and his representative of the date and time of the hearing, in accordance with 38 C.F.R. § 20.704(b) (2012). After the hearing, or if the Veteran fails to report for the scheduled hearing or withdraws his hearing request, the claims file should be returned to the Board in accordance with current appellate procedures. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument with respect to the remanded matters during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 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. 2013). _________________________________________________ MICHAEL A. HERMAN 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) (2013).