Citation Nr: 1635378 Decision Date: 09/09/16 Archive Date: 09/20/16 DOCKET NO. 10-40 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1974 to October 1977. In June 1979, the RO denied the Veteran's claim of entitlement to service connection for a low back disorder, characterized as lumbar spondylosis at L5-L6 and wedging at L1-L2 with traumatic arthritis and levoscoliosis. A notice of disagreement was not received with which to initiate an appeal; and, therefore, that decision became final under the law and regulations then in effect. 38 38 U.S.C. § 4005(c)(1976); 38 C.F.R. § 19.153(1978). In April 2009, the Veteran requested that such claim be reopened. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009, rating decision of the Saint Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in March 2010. The RO issued a statement of the case (SOC) in July 2010. The Veteran subsequently perfected his appeal with a VA Form 9 in September 2010. In April 2014, the Board remanded the Veteran's claim for further development, and the case has now been returned to the Board for further appellate action. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In his substantive appeal (VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge from the Board. In March 2013, the VA notified the Veteran of the date, time, and location of that hearing. That notice was returned by the Post Office as undeliverable, and the Veteran never reported for his hearing. In March 2014, the Veteran's representative reported that the Veteran still wished to have a hearing at the RO before a Veterans Law Judge from the Board. In April 2014, the Board remanded the Veteran's claim so that he could be afforded a Board hearing. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's representative Disabled American Veterans (DAV), submitted a written brief in August 2016, arguing that the Board's April 2014 Remand was not complied with. DAV contended that there had been a Stegall violation, and requested that the case be remanded so that the Veteran could be afforded a hearing. The Veteran was not afforded a Board hearing, in accordance with the April 2014 Remand, and the reason one was not scheduled was not provided. Accordingly, the requirements of the remand were not ultimately accomplished and the prior remand instructions were not substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must reschedule a Board hearing before a Veteran's Law Judge at the RO, and inform the Veteran of the date, time and location. In so doing, the RO/AMC may wish to enlist the assistance of the Veteran's representative to ensure that the hearing notice is mailed to the proper address. A copy of the notice must be associated with the claims folder. If the notice is returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder. 2. When the foregoing actions have been completed, and if otherwise in order, the RO/AMC must return the Veteran's claims file to the Board for further appellate consideration. 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). _________________________________________________ WAYNE M. BRAEUER 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).