Citation Nr: 0001914 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 98-16 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to automobile and adaptive equipment or adaptive equipment only. 2. Entitlement to specially adapted housing or a special home adaptation grant. (The issues of entitlement to increased ratings for the veteran's service-connected right knee, left knee, low back and skin disabilities, as well as his petition to reopen a claim for service connection for a heart disorder, are the subject of a separate decision of the Board.) REPRESENTATION Appellant represented by: Michael E. Wildhaber, Attorney ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from May 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April and August 1998 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). In the April 1998 rating action, the RO denied the veteran's claim of entitlement to automobile and adaptive equipment or adaptive equipment only (automobile benefits). In the August 1998 rating decision, the RO denied his claim for specially adapted housing or a special home adaptation grant (housing benefits). The veteran timely appealed these determinations to the Board. REMAND In his undated Substantive Appeal, on VA Form 9, which received at the RO that in August 1998 in connection with his claim for automobile benefits, the veteran requested that he be afforded a hearing before a traveling Member of the Board at the local VA office. Thereafter, in VA Form 9 dated in March 1999, which was received at the RO in April 1999, the veteran reiterated his request for such a hearing in connection with his housing claim. In numerous statements subsequently filed at the RO, the veteran reiterated his request to appear at a hearing conducted before a Traveling Member of the Board, and in doing so, referred to his waiver of overpayment and left hand disability claims, both of which will be discussed below. To date, however, the veteran has not been afforded the opportunity to appear at hearing conducted before a Member of the Board, and the claims file does not reflect that he has withdrawn his request for such a hearing. Accordingly, this case must be remanded. In addition, in a December 1997 decision, the RO's Committee on Waivers and Compromises (Committee) granted the veteran's request for a waiver of an overpayment of $6,613.00, paid during the period of August 1, 1996, to September 1, 1997. In doing so, the Committee indicated in its decision that the veteran was not "significantly at fault because he had no control over the start of the Social Security or the fact that it was made retroactive." Thereafter, in January 1998 award letter, the RO notified the veteran that it would withhold retroactive benefits that had been paid due to his receipt of unreported SSA income. In May 1998, the veteran filed a Notice of Disagreement (NOD) with respect to this action, and in September 1998, the RO issued him a Statement of the Case with respect to this claim. The veteran's Substantive Appeal, however, was not filed until March 1999, and in April 1999 rating action, the RO informed him that the Substantive Appeal was untimely. The veteran filed an NOD with respect to the April 1999 rating action later that same month. See 38 C.F.R. § 20.201 (1999). However, the claims folder does not reflect that, to date, that the RO has issued the veteran a Statement of the Case (SOC) with respect to this issue. Under these circumstances, the Board must remand this claim to the RO for the issuance of that SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v Gober, 10 Vet. App. 433, 436 (1997). Similarly, in an April 1999 rating decision, the RO denied the veteran's claim for service connection for a left hand disability, which he had asserted as secondary to his service-connected right and left knee disabilities. In two statements, each filed at the RO in May 1999, the veteran expressed his disagreement with that determination and a desire to appeal it, which the Board interprets as an NOD with the April 1999 rating decision. See 38 C.F.R. § 20.201. Because the record does not indicate that the RO has issued the veteran a SOC with respect to this issue, the Board must remand the claim to the RO for the issuance of that SOC. See Manlincon; Holland. Accordingly, the Board hereby REMANDS the case to the RO for the following actions: 1. The RO should issue the veteran a Statement of the Case with respect to his claims regarding the timeliness of his March 1999 Substantive Appeal with respect to his claim for a waiver of an overpayment and for secondary service connection for a left hand disability, to include notification of the need to timely file a substantive appeal to perfect his appeals on these issues. 2. The RO should schedule the veteran for a hearing before a traveling Member of the Board at the RO at the earliest available opportunity. Unless the veteran indicates, preferably, in a signed writing, that he no longer desires a BVA hearing, such hearing should be held and the claims file thereafter transferred to the Board in accordance with current applicable procedures. The purpose of this REMAND is to ensure that all due process requirements are met, and 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 within the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACQUELINE E. MONROE 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).