Citation Nr: 0007726	
Decision Date: 03/22/00    Archive Date: 03/28/00

DOCKET NO.  98-17 564	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Hartford, 
Connecticut


THE ISSUE

Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for post-
traumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

B. N. Booher, Associate Counsel



INTRODUCTION

The veteran had active service from August 1967 through 
August 1971.  His claim comes before the Board of Veterans' 
Appeals (Board) on appeal from a December 1997 rating 
decision of the Department of Veterans Affairs (VA) Regional 
Office in Hartford, Connecticut (RO).


REMAND

The veteran requests the Board to reopen his claim of 
entitlement to service connection for PTSD on the basis that 
he has submitted new and material evidence that well grounds 
his claim.  A preliminary review of the record discloses that 
additional RO development is required prior to further Board 
review of the veteran's claim.

The evidence of record discloses that the veteran, in VA 
Forms 9 (Appeal to Board of Veterans' Appeals) received in 
October 1998 and November 1998, requested a Board hearing at 
a local VA office.  By letter dated April 1999, the veteran 
was notified that a hearing had been scheduled for May 27, 
1999.  A memorandum in the claims file dated May 24, 1999 
reflects that the veteran's hearing was to be "reschedule[d] 
next time Travel Board in town."  The veteran failed to 
appear for the May 27, 1999 hearing.

Pursuant to 38 C.F.R. § 20.704(c)(1999), which governs 
procedures regarding Board hearings, 

[r]equests for a change in a hearing date 
may be made at any time up to two weeks 
prior to the scheduled date of the 
hearing if good cause is shown.  Such 
requests must be in writing, must explain 
why a new hearing date is necessary, and 
must be filed with the office of the 
official of the Department of Veterans 
Affairs who signed the notice of the 
original hearing date.  Examples of good 
cause include, but are not limited to, 
illness of the appellant and/or 
representative, difficulty in obtaining 
necessary records, and unavailability of 
a necessary witness.  If good cause is 
shown, the hearing will be rescheduled 
for the next available hearing date after 
the appellant or his or her 
representative gives notice that the 
contingency which gave rise to the 
request for postponement has been 
removed.  If good cause is not shown, the 
appellant and his or her representative 
will be promptly notified and given an 
opportunity to appear at the hearing as 
previously scheduled.   

In the present case, the veteran failed to request a change 
of his hearing date up to two weeks prior to his scheduled 
hearing.  Therefore, under 38 C.F.R. § 20.704(c), the veteran 
is not entitled to another Board hearing.  

However, under 38 C.F.R. § 20.704(d), when a veteran fails to 
appear for a scheduled hearing, no further request for a 
hearing will be granted unless such failure to appear was 
with good cause and the cause arose under such circumstances 
that a timely request for postponement could not have been 
submitted prior to the scheduled hearing date.  In this case, 
there is no indication in the claims file as to whether the 
veteran had good cause for failing to appear at the scheduled 
May 1999 hearing.  However, the fact that he telephoned the 
RO several days prior to his scheduled hearing date leads the 
Board to believe that he knew he would be unavailable to 
testify on May 27, 1999.  Inasmuch as the unavailability of a 
key witness represents good cause under 38 C.F.R. 
§ 20.704(c), the Board finds that the veteran had good cause 
for failing to appear.  The Board also finds that the veteran 
had good cause for not postponing his hearing up to two weeks 
prior to May 27, 1999.  The veteran is clearly conscientious, 
having notified the RO that he would be unable to appear at 
the scheduled hearing.  Based on this fact, the Board assumes 
the veteran did not know prior to the day he telephoned the 
RO that he would be unable to testify.  In light of these 
findings, the Board concludes that the veteran is entitled to 
have his hearing rescheduled. 

This case is remanded to the RO for the following action:

The veteran should be scheduled for a 
hearing before a member of the Board 
sitting at the RO.  The veteran and his 
representative should be notified in 
writing of the date, time and place of 
such a hearing and the claims file should 
be documented to reflect such 
notification.

Following the hearing, the claims file should be returned to 
the Board for further appellate review.  The purpose of the 
REMAND is to afford the veteran due process of law.  The 
Board intimates no opinion, favorable or unfavorable, as to 
the merits of this claim.  The veteran has the right to 
submit additional evidence on this matter, but he is not 
required to act until he is otherwise notified.  



		
	L. J. NOTTLE
	Acting Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).