Citation Nr: 1640723 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 04-29 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a traumatic brain injury (TBI). 2. Entitlement to service connection for a right hip condition. 3. Entitlement to service connection for a left kidney condition, to include as due to an undiagnosed illness and as secondary to a service-connected disability. 4. Entitlement to an initial compensable disability rating for polymorphous light eruption (PMLE) for the period prior to February 26, 2013, and a disability rating in excess of 10 percent thereafter. ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to October 1988, and from April 1989 to January 1996; he also served in the Marine Corps Reserves prior to his first period of active duty service. Initially, this case came before the Board on appeal from an October 2002 rating decision, which, in pertinent part, denied entitlement to service connection for a low back condition, a right hip condition, a left kidney condition, and PMLE. In July 2007, the Board remanded the case for further development. In an August 2008 decision, the Board granted entitlement to service connection for a low back condition and PMLE, and the Board denied entitlement to service connection for a right hip condition and a left kidney condition. In a September 2008 rating decision, the Appeals Management Center (AMC), in pertinent part, effectuated the Board's grant of service connection for PMLE and assigned a noncompensable rating, effective January 7, 2002. In November 2008, the Board received a Motion for Reconsideration of the August 2008 Board decision. In a July 2009 decision, the Board vacated the Board's August 2008 decision, but only to the extent that it had denied service connection for a right hip condition and a left kidney condition. Those issues were then remanded for further development. The July 2009 Board decision also determined that the Veteran's November 2008 Motion for Reconsideration contained a timely Notice of Disagreement as to the initial rating assigned for PMLE. Upon remand, the Board directed the RO/AMC to issue a Statement of the Case addressing the claim for entitlement to an initial compensable rating for PMLE. The SOC was later issued in October 2011, and the Veteran thereafter perfected a timely appeal as to that issue. In an August 2013 rating decision, the RO increased the disability rating for PMLE from noncompensable to 10 percent disabling, effective February 26, 2013. As that award does not represent a total grant of the benefits sought on appeal, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In a July 2014 rating decision, the RO denied entitlement to service connection for a TBI. In October 2014, the Board remanded the issues of entitlement to service connection for a right hip condition and a left kidney condition and entitlement to an increased rating for PMLE for further development. In November 2014, the Veteran filed a timely notice of disagreement with the denial of entitlement to service connection for a TBI; a statement of the case was issued in April 2015; and a substantive appeal was received in May 2015. The Board remanded all four issues in July 2015 and December 2015. Both remands were for the purpose of scheduling the Veteran for a videoconference hearing before a Veterans Law Judge. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its October 2014 remand, the Board instructed the RO to schedule the Veteran for a Board hearing. The RO scheduled the Veteran for a hearing to take place in April 2015. The Veteran failed to report. In April 2015, the Veteran contacted the RO and requested that the Board hearing be rescheduled. He stated that he did not receive notification of the hearing until after the date had passed. In May 2015, the Veteran also submitted a substantive appeal (VA Form 9) with respect to the issue of entitlement to service connection for a TBI. In it, he requested a videoconference hearing. Accordingly, in its July 2015 remand, the Board instructed the RO to schedule the Veteran for a Board hearing. The RO scheduled the Veteran for a hearing to take place in October 2015. On October 6, 2015, nine days prior to his scheduled video hearing, VA received a letter from the Veteran in which he asked that his hearing be rescheduled to allow him an opportunity to obtain additional evidence in support of his appeal. No action was taken on that letter. Accordingly, in its December 2015 remand, the Board instructed the RO to schedule the Veteran for a Board hearing. The RO scheduled the Veteran for a hearing to take place in September 2016. The Veteran failed to appear. On September 29, 2016, 21 days after the scheduled hearing, the Veteran contacted the RO by phone to request a new hearing. He asserted that he was not able to attend the hearing because he was scheduled for an MRI at a VA Medical Center on the same date. Hearings will be rescheduled only if requests for a change are received by VA more than two weeks prior to the hearing date and if good cause is shown. 38 C.F.R. § 20.704 (c). If a Veteran fails to appear for a hearing, a motion for a new hearing date following a failure to appear for the scheduled hearing must be in writing, must be filed within 15 days of the originally scheduled hearing date, and must explain why the appellant failed to appear for the hearing and why a timely request for a new hearing date could not have been submitted. 38 C.F.R. § 20.704 (d). The determination as to whether good cause is shown is made by the Board. 38 C.F.R. § 20.704 (c). The Board notes that this is the third attempt to schedule the Veteran for a hearing. The Board also notes that the Veteran did not timely submit a motion for a new hearing. However, on these facts, to include the fact that the Veteran is unrepresented, the Board finds that good cause to grant the request for a new hearing has been presented. Giving the Veteran the benefit of the doubt, the Board believes he is entitled to a videoconference hearing. Accordingly, the case is REMANDED for the following action: Contact the Veteran and schedule a videoconference hearing at the local RO before a Veterans Law Judge of the Board. A copy of the letter notifying the Veteran of the scheduling of the hearing should be placed in the record. If the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ TANYA SMITH 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).