Citation Nr: 1636676	
Decision Date: 09/20/16    Archive Date: 09/27/16

DOCKET NO.  13-26 949	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with Major Depressive Disorder and Personality Disorder.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Connor, Associate Counsel






INTRODUCTION

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

This matter is on appeal from rating decisions in April 2010 and April 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

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


REMAND

In May 2013, the Veteran filed a substantive appeal (VA Form 9) indicating that she wished to be scheduled for a hearing before the Board.  The Veteran failed to appear to her scheduled January 2015 video hearing.  However, in an April 2013 correspondence, the Veteran requested that her address of record be changed to an address in Missouri.  In an August 2014 correspondence, the Veteran's representative noted that the Veteran's "current address" was a previous address of record in Arkansas.  Notice of the Veteran's scheduled video hearing was sent to the address in Arkansas in December 2014 and returned to sender as an insufficient address.  The letter was also sent to another previous address of record in Arkansas and returned.  The Board finds that it is unclear as to whether the Veteran actually received notice of her hearing date.   

The United States Court of Appeals for Veterans Claims (Court) has held that the presumption of regularity that attends the administrative functions of the Government is applicable and that, ordinarily, it would be presumed that the Veteran was provided with the December 2014 letters regarding her hearing, unless rebutted by clear evidence to the contrary.  See Baldwin v. West, 13 Vet. App. 1, 6, (1999); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).  The Court has declared that VA's use of an incorrect address constitutes the clear evidence needed to rebut the presumption that it properly notified the Veteran.  See Fluker v. Brown, 5. Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993).  Here, there is a serious question as to whether the Veteran's proper mailing address was used to send the hearing notice.  

Based on the foregoing, the Board finds that due process concerns dictate that VA attempt to verify the Veteran's address to ensure she has notice of her requested hearing date.  The Board reminds the Veteran that the duty to assist is not a one-way street.  Wood v. Derwinski, 1 Vet. App. 190 (1991).  The Veteran has a responsibility in providing VA with a current address and a means of contacting her.

Accordingly, the case is REMANDED for the following action:

1. The AMC/RO should contact the Veteran and/or her representative and obtain and confirm the Veteran's current contact information, noting the April 2013 correspondence indicating she lives in Missouri.

2. Once the Veteran's contact information has been verified, schedule the Veteran for a hearing before a Veterans Law Judge at the RO in accordance with 38 C.F.R. § 20.704, which may be conducted either in person or by video communication if the Veteran so chooses.  38 C.F.R. § 20.200(e).  Notice of the hearing should be mailed to the Veteran's current address of record.

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).



_________________________________________________
MICHAEL A. HERMAN
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).