Citation Nr: 1602770	
Decision Date: 01/29/16    Archive Date: 02/05/16

DOCKET NO.  10-44 402	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania



THE ISSUE

Entitlement to an evaluation in excess of 50 percent for an acquired psychiatric disorder, to include major depression with generalized anxiety disorder.


REPRESENTATION

Veteran represented by:	New Jersey Department of Military and Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and her friend



ATTORNEY FOR THE BOARD

J. Gallagher, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1980 to April 1981, from March 1991 to September 1991, from September 2001 to September 2002, and from November 2007 to March 2008.

This appeal is before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO).

In May 2015, the Veteran testified during a Board hearing in Philadelphia, Pennsylvania before the undersigned Veterans Law Judge.  A transcript is included in the claims file.

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


REMAND

The Board finds that remand is necessary to afford the Veteran adequate representation in her appeal.  

VA regulations provide that, when a Veteran appeals to the Board, he or she "will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person."  38 C.F.R. § 20.600 (2015).  VA policy is to afford a representative the opportunity to submit a VA Form 646 after completion of the development at the regional office and prior to certification of the appeal to the Board.  See M21-1, Part I.5.F.2 (Aug. 19, 2005).  

In December 2010, the Veteran appointed the New Jersey Department of Military and Veterans' Affairs (NJDMVA) as her representative with a valid VA Form 21-22.  NJDMVA was copied on all appropriate correspondence until December 2012, when the RO determined that there was no VA Form 21-22 of record and the Veteran was therefore unrepresented.  This determination was erroneous.

Since December 2012, NJDMVA has not been copied on any correspondence.  In the January 2015 certification of appeal, the RO stated that no VA Form 646 was requested because the Veteran was unrepresented.  NJDMVA was neither informed of nor present at the Veteran's May 2015 hearing before the Board, where the Veteran was represented by a VA veteran's service representative provided for the day. 

The Board inquired about the Veteran's representation status via a December 2015 letter.  The letter informed the Veteran that there was some confusion about her representative status and asked whether she wanted representation or wished to continue unrepresented.  If the Veteran did not apply, the letter informed her that the Board would presume that she still wished to be represented by NJDMVA.  No reply was received.

The Board therefore finds that remand is necessary to afford NJDMVA an opportunity to provide a VA Form 646 or equivalent on the Veteran's behalf prior to a decision on this appeal.

Accordingly, the case is REMANDED for the following action:

Afford the Veteran's representative, the New Jersey Department of Military and Veteran's Affairs, an opportunity to review the claims file and complete a VA Form 646 or equivalent written argument on the issue of entitlement to an evaluation in excess of 50 percent for an acquired psychiatric disorder, to include major depression with generalized anxiety disorder.

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).



_________________________________________________
JONATHAN B. KRAMER
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 your appeal.  38 C.F.R. § 20.1100(b) (2015).