Citation Nr: 1740975	
Decision Date: 09/20/17    Archive Date: 10/02/17

DOCKET NO.  13-33 835	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Whether new and material evidence has been received to reopen a claim of service connection for a lumbar spine disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Faverio, Associate Counsel



INTRODUCTION

The Veteran had active service from July 1974 to December 1974.  He was subsequently a member of the South Carolina and West Virginia Army National Guard.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, inter alia, determined that new and material evidence had not been received to reopen a previously denied claim of service connection for a lumbar spine disability.  

This appeal was previously before the Board in November 2015 and remanded to schedule a Board hearing for the Veteran.  A hearing was scheduled but the Veteran did not attend.  As will be discussed below, the Board finds that good cause was shown for the Veteran's failure to appear and a new hearing will be scheduled.  

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


REMAND

Pursuant to the Board's November 2015 remand, the Veteran was scheduled for a Board videoconference hearing, to be held in December 2016.  The record shows that two days before the hearing, however, the Veteran notified the RO that his wife was in the hospital and in need of surgery and he was unsure if he would be able to attend the hearing.  See November 2016 VA Form 21-0820 Report of General Information.  The record shows that the Veteran then failed to report for the hearing.  

In a September 2017 Post-Remand Brief, the Veteran's representative requested that this matter be remanded to afford the Veteran the opportunity to attend a Board hearing.  He acknowledged the Veteran's failure to appear for the previous hearing and his failure to request a postponement prior to the hearing, but indicated that the hospitalization of the Veteran's wife constituted good cause pursuant to 38 C.F.R. § 20.704.  

A hearing on appeal will be granted if an appellant, or his or her representative, expresses a desire to appear in person.  38 C.F.R. § 20.700 (2016).  Indeed, the importance of responding to a request for a hearing is recognized under 38 C.F.R. § 20.904(a)(3) (2016), as a Board decision may be vacated when there is a prejudicial failure to afford an appellant a personal hearing.

Having found good cause for the Veteran's failure to request that his December 2016 hearing be rescheduled, a new hearing is warranted.  In order to ensure full compliance with due process requirements, therefore, a Board videoconference hearing at the RO should be scheduled.  As such hearings are scheduled by the AOJ, a remand is necessary.  See 38 C.F.R. §§ 20.700, 20.704(a) (2016).

Accordingly, the case is REMANDED for the following action:

The Veteran should be scheduled, in accordance with appropriate procedures, for a videoconference hearing before a Veterans Law Judge.  A copy of the notice to the appellant of the scheduling of the hearing should be placed in the record, keeping in mind the 30-day advance notice requirement specified at 38 C.F.R. § 19.76 (2016).

The Veteran has the right to submit additional evidence and argument on the matter 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 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).




_________________________________________________
K. CONNER
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) (2016).