Citation Nr: 1602670	
Decision Date: 01/28/16    Archive Date: 02/05/16

DOCKET NO.  14-08 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to total disability based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Michael R. Viterna, Esq.


ATTORNEY FOR THE BOARD

Steven D. Najarian, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1970 to August 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder.  This appeal was processed using the Veterans Benefits Management System (VBMS).  Any future consideration of the Veteran's case should take into consideration the existence of this electronic record.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In January 2014, following the issuance of a statement of the case in December 2013, the Veteran filed a VA Form 9 to appeal the RO's denial of his claim of entitlement to individual unemployability benefits.  The Veteran checked the box on the form indicating that he did not request a hearing before the Board.

In November 2014, the Veteran's appeal was certified to the Board.  See VA Form 8 of November 2014.

By a filing of December 2014, the Veteran requested that VA "place my case on the docket of the Board of Veterans Appeals and schedule me for a video hearing."  

In October 2015, the Board notified the Veteran that his appeal had been formally placed on the Board's docket.

The Board shall decide an appeal only after affording the appellant an opportunity for a hearing.  See 38 U.S.C.A. § 7107(b) (West 2014).  A hearing on appeal before the Board will be granted if an appellant, or the appellant's representative, expresses a desire to appear in person.  See 38 C.F.R. § 20.700 (2015).

An appellant may request a hearing before the Board at a Department of Veterans Affairs field facility when submitting the substantive appeal (VA Form 9) or anytime thereafter, subject to the restrictions in 38 C.F.R. § 20.1304.  See 38 C.F.R. § 20.703 (2015).  An appellant will be granted a period of 90 days following notification that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the Board promulgates the appellate decision, whichever is later, during which the appellant may submit a request for a personal hearing.  See 38 C.F.R. § 1304(a) (2015).

In the present appeal, the Veteran filed a hearing request in December 2014, before he was notified, in October 2015, of appellate certification to the Board.  Neither the Veteran nor his representative has withdrawn the December 2014 request for a Board hearing.  The appeal will be remanded to afford the Veteran a Board hearing.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a videoconference hearing before a Veterans Law Judge at the RO in Detroit, Michigan for the issue on appeal.  The Veteran and his attorney should be notified of the date, time, and place of the hearing by letter mailed to his current address of record, with a copy to his representative.

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 2014).



_________________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal.  38 C.F.R. § 20.1100(b) (2015).