Citation Nr: 1642946 Decision Date: 11/09/16 Archive Date: 12/01/16 DOCKET NO. 13-04 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for breathing problems, to include allergic rhinitis. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hiatal hernia. 3. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD P. M. Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1988 to April 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2009 and December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In the December 2009 rating decision, the RO characterized the Veteran's claims related to breathing problems and hiatal hernia as "entitlement to service connection for breathing problems and entitlement to service connection for hiatal hernia" but denied these claims on the basis that "the evidence submitted is not new and material." Regardless of whether the RO granted or denied an application to reopen, however, the Board has a jurisdictional responsibility to consider whether reopening of a claim was proper. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A preliminary review of the record reveals that additional development is necessary prior to adjudication by the Board. In a February 2013 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran requested a hearing before a Veterans Law Judge live by videoconference related to the issues of entitlement to service connection for breathing problems and hiatal hernia. While the Veteran did not initially request a hearing with regard to her claim for entitlement to service connection for sleep apnea, she submitted a statement requesting a hearing before a Veterans Law Judge live by videoconference in November 2013. In July 2016, the AOJ attempted to inform the Veteran that a hearing was scheduled in August 2016. Unfortunately, the claims file indicates that the notice of the hearing was returned to VA with notice that the letter had not been received and that the post office was unable to forward the letter. There is no indication that the Veteran was otherwise provided notice prior to the hearing. The Veteran failed to report to the hearing as scheduled. A September 2016 letter notifying the Veteran that her claims file had been placed on the Board's docket was also returned with notice that mail was unable to be forwarded. Review of the claims file indicates that a new address for the Veteran has been associated with the claims file since the September 2016 letter was sent. As these letters were returned as undeliverable and VA has been provided with an alternate address to potentially contact the Veteran, the Board finds that the case must be returned to the AOJ to schedule another videoconference hearing to ensure due process requirements are met. See 38 C.F.R. § 20.704. Accordingly, the case is REMANDED for the following action: The AOJ should take appropriate steps in order to schedule the Veteran for a personal hearing with a Veterans Law Judge of the Board via video conference in accordance with her request. The Veteran and her representative should be notified in writing of the date, time, and location of the hearing, at the most recent address of record. After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures. 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). _________________________________________________ S. C. KREMBS 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).