Citation Nr: 1644891 Decision Date: 11/30/16 Archive Date: 12/09/16 DOCKET NO. 13-34 118 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a kidney condition. 4. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to low back strain. 5. Whether new and material evidence has been received to reopen a claim for service connection for a depression and insomnia, claimed as a nervous condition, to include as secondary to low back strain. 6. Whether new and material evidence has been received to reopen a claim for service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to June 1973 This appeal to the Board of Veterans' Appeals (Board) arose from a May 2011 rating decision in which the RO in San Juan, Puerto Rico denied the Veteran's claims for service connection for diabetes mellitus, hypertension, a kidney condition, and right leg numbness, and determined that new and material evidence had not been submitted to reopen previously denied claims for service connection for depression and insomnia, claimed as a nervous condition, and for headaches. In March 2012, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in October 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2014. The Board notes that the Veteran did not include the issue of entitlement to service connection for headaches in the list of issues he wished to appeal on section 9 of his VA Form 9. The Veteran did, however, check the box in section 9.A. of the form; therefore, the Board must consider the claim for service connection for headaches, listed in the October 2013 statement of the case, as also on appeal. See Evans v. Shinseki, 25 Vet. App. 7 (2011) (if a claimant uses a VA Form 9 and checks box 9.A. stating that "I want to appeal all of the issues listed on the statement of the Case and any Supplemental Statement of the Case that my local VA office sent to me," then all issues listed on the SOC are on appeal to the Board and it has waived its ability to dismiss any of those issues under 38 U.S.C. § 7105 (d)(5)). This appeal is now being processed utilizing the Veterans Benefits Management System (VBMS) and Virtual VA, paperless, electronic claims processing systems. For reasons expressed below, the claims on appeal are being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. REMAND In the Veteran's November 2013 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge to be held at his local RO (travel board hearing). He was initially scheduled for a hearing to be on May 9, 2014. That hearing was, however, cancelled by the Veteran's representative. It would appear that another hearing was requested, as the record contains correspondence from the RO dated March 19, 2015, notifying the Veteran that his requested hearing had been scheduled for April 9, 2015. The Veteran did not report to the scheduled hearing. However, on April 6, 2015, the Veteran faxed a statement notifying the RO that he would be unable to attend his scheduled hearing due to the fact that he was currently outside of Puerto Rico and was unable to arrange for travel back to Puerto Rico until April 18, 2015. That statement, in which the Veteran requested that his hearing be postponed to a later date, was noted associated with the claims file until sometime after the April 9, 2015 scheduled hearing date. In this regard, after notification of a hearing, an appellant may request a different hearing date within 60 days but not later than two weeks prior to the scheduled date. 38 C.F.R. § 20.702(c) (2015). No grounds for the request need be stated. Id. After that period, the date for the hearing becomes fixed and any requests for an extension of time will be granted only if good cause is shown. Id. Whether good cause has been shown will be determined by the presiding Veterans Law Judge assigned to the hearing. Id. Under these circumstances, the Board finds that good cause has been shown to reschedule the Veteran's Board hearing so as to allow him to testify before a Veterans Law Judge during a travel board (or video-conference) hearing, As the RO schedules such hearings, a remand of these matters for the requested hearing is warranted. Accordingly, these matters are hereby REMANDED for the following action: Schedule the Veteran for a Board hearing in accordance with his request, notifying him and his representative of the date and time of the hearing. See 38 C.F.R. § 20.704(b) (2015). The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).