Citation Nr: 1616655	
Decision Date: 04/26/16    Archive Date: 05/04/16

DOCKET NO.  09-27 670A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California



THE ISSUE

Entitlement to service connection for chronic obstructive pulmonary disorder (COPD).



REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs



ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1955 to January 1959.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

The Veteran was scheduled for a hearing before the Board at the RO in March 2013; however, he cancelled his request in a February 2013 written statement.  Thus, his hearing request is considered withdrawn.  38 C.F.R. § 20.704 (2015).

The Board most recently remanded the case for further development in June 2014.  The case has since been returned to the Board for appellate review.

This appeal was processed using the Veterans Benefits Management System (VBMS).  The Virtual VA claims file contains documents that are either duplicative of the evidence in the VBMS claims file or not relevant to the issue on appeal, with the exception of additional VA treatment records already considered by the Agency of Original Jurisdiction (AOJ).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


REMAND

On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran's claim.  Specifically, in the June 2014 remand, the Board instructed the AOJ to contact the Veteran to clarify whether he would still like a hearing before a Decision Review Officer (DRO) and respond appropriately to any clarification received from him.  In a September 2014 letter, the RO requested that the Veteran indicate whether he wanted to have a DRO assigned to his case and explained that a DRO is responsible for holding hearings and processing appeals.  In a January 2015 written response (dated shortly after the RO's letter), the Veteran indicated that he wanted DRO review of his appeal.

Based on the foregoing, the Board finds that the Veteran's submission constitutes a continued request for a DRO hearing.  There is no indication in the claims file that the RO took action on the Veteran's hearing request or that the Veteran has ever withdrawn his request.  Thus, a remand is required to afford the Veteran all due consideration in this regard.  Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 3.103(a).

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).  Expedited handling is requested.)

1.  The AOJ should schedule the Veteran for a hearing with a DRO at the local RO in accordance with his request.  The Veteran should be notified in writing of the date, time, and location of the hearing.

2.  After the DRO hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the AOJ should conduct any other outstanding, necessary development.  Further development may include obtaining an additional VA medical opinion or providing an additional VA examination.

3.  The case should then be reviewed by the AOJ on the basis of additional evidence.  If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case, if needed, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).



_________________________________________________
J.W. ZISSIMOS
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).