Citation Nr: 1622727 Decision Date: 06/07/16 Archive Date: 06/21/16 DOCKET NO. 11-31 632 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a previously denied and final claim for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Travis Barrick, Attorney ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1972 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The RO in Los Angeles, California, has since taken jurisdiction over this appeal. The Board notes that the Veteran had been previously denied service connection for PTSD in rating decisions issued in September 2000 and November 2001. If new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014). Although the October 2009 rating decision found that new and material evidence had been found to reopen the previous claim, the Board does not have jurisdiction to consider a previously adjudicated claim until it completes a new and material evidence analysis and finds the claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 U.S.C.A. §§ 5108, 7104(b) (West 2014). As will be discussed below, the Veteran must be afforded a hearing on remand. He has a right to a hearing on the issue of new and material evidence before the Board adjudicates that issue. As such, the Board has reframed the issue on appeal as one to reopen the previously denied and final claim for service connection for PTSD based on new and material evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to 38 C.F.R. § 20.700 (2015), a Board hearing for a claim on appeal will be granted to an appellant who requests one and is willing to appear in person. See 38 U.S.C.A. § 7107 (West 2014) (pertaining specifically to hearings before the Board). In his November 2011 VA Form 9 (Appeal to the Board of Veterans' Appeals), the Veteran clearly indicated a desire for a hearing via videoconference. In a letter submitted by the Veteran's former representative in February 2013, the Veteran stated that he wished to change his hearing request from a video hearing to a Travel Board hearing. In that letter he also asked VA to update his address. In April 2014, the sent two letters to the Veteran informing him that a Travel Board hearing had been scheduled for July 8, 2014. The letters were sent to his previous address, as well as the address which his representative had updated in the February 2013 letter. Notably, the letter to the updated address used an incorrect apartment number. In June 2014, prior to the scheduled hearing, the Veteran submitted a new VA Form 21-22a (Appointment of Individual as Claimant's Representative), appointing the above private attorney as his present representative. The RO did not provide notice to the new representative of the scheduled hearing in July 2014. The Veteran failed to appear for the July 2014 hearing. Subsequent letters submitted by the Veteran and his attorney in September 2014 and January 2016 (dated by the Veteran in January 2015) continue to request a hearing, although changing the request back to a hearing via videoconference. In light of the above, the Board cannot state that the Veteran was ever provided with notice at latest address of record that he was scheduled for the requested hearing in July 2014. 38 C.F.R. § 3.1(q). Further, there is no evidence of record that the Veteran ever intended to withdraw his hearing request as evidenced by the 2014 and 2016 correspondence. Because the Veteran has not been afforded the opportunity to appear as requested, the case will be remanded. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a Board videoconference hearing using his latest address of record. A copy of the letter advising the Veteran of the time and place to report should be associated with the claims file. The appellant 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). _________________________________________________ PAUL SORISIO 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. 38 C.F.R. § 20.1100(b) (2015).