Citation Nr: 1609938	
Decision Date: 03/11/16    Archive Date: 03/22/16

DOCKET NO.  08-00 311A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an initial disability rating in excess of 30 percent for adjustment disorder with mildly depressed mood and posttraumatic stress disorder with a history of mood disorder (acquired psychiatric disability) prior to February 12, 2008, and a disability rating in excess of 70 percent on and after February 12, 2008.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. D. Bruce, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 2000 to November 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  This case was previously remanded by the Board in November 2011, October 2013, and March 2014.

In a November 2014 rating decision, the RO granted an increased disability rating of 70 percent for the Veteran's acquired psychiatric disability, effective February 12, 2008.  Because the increased disability rating assigned is not the maximum rating available, the claim remains in appellate status, and the Board has re-characterized the issue as shown on the title page.  See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The appeal is REMANDED to the Agency of Original Jurisdiction.  VA will notify the Veteran if further action is required.


REMAND

In a January 2008 VA Form 9 Substantive Appeal, the Veteran requested to testify before a Veterans Law Judge at a Travel Board hearing regarding the issue on appeal.  See 38 C.F.R. § 20.700 (2015).  A hearing was scheduled for October 2009, and the Veteran did not appear.  While the Board found in its October 2013 remand that the Veteran had provided no explanation for not reporting, a review of the record reflects that, prior to the scheduled hearing, the Veteran submitted a request to reschedule due to a work conflict.  She specifically stated that she did not wish to withdraw her hearing request, and at no other point has she indicated that she wished to withdraw.

Considerations of due process mandate that the Board may not proceed with review of the claim on appeal without providing the Veteran an opportunity for the requested hearing.  Therefore, remand is required in this case in order to schedule the Veteran for a Travel Board hearing so that she may provide evidence in support of her claim.  See 38 U.S.C.A. § 7107(b) (West 2014); 38 C.F.R. § 20.700(a). 

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a Travel Board hearing in accordance with the procedures set forth at 38 C.F.R. §§ 20.700(a), 20.704(a) (2015).  

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



_________________________________________________
ROBERT C. SCHARNBERGER
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).