Citation Nr: 0000248 Decision Date: 01/05/00 Archive Date: 01/11/00 DOCKET NO. 97-35 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial compensable rating for calluses on both feet. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The appellant had active military service from July 1978 to July 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). In his July 1997 substantive appeal the appellant raised claims for service connection for deformity and metatarsalgia of both feet and entitlement to an earlier effective date for service connection with a noncompensable rating for calluses on both feet. In March 1999, the RO denied service connection for right hallux valgus with metatarsalgia, left hallux valgus with degenerative joint disease and metatarsalgia, onychomycosis, and pes cavus and an earlier effective date for service connection for calluses on both feet. The RO notified the appellant of these determinations by letter dated April 3, 1999; the appellant has not filed a notice of disagreement as to these determinations. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 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. 1999) (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. The appellant filed his filed a notice of disagreement in December 1996. Attached to the notice of disagreement is a VA Form 9, in which the appellant indicated that he wanted a hearing before a Member of the Board at the RO. This form provides an appellant the opportunity to request a hearing before a Member of the Board but does not provide the appellant an opportunity for a hearing before the Hearing Officer at the RO. The record shows that a hearing was never scheduled. It is a basic principle of veterans' law that the Board shall decide an appeal only after affording the appellant an opportunity for a hearing. Each appellant will be accorded hearing rights. 38 U.S.C.A. § 7105 (West 1991). Pursuant to 38 C.F.R. § 20.700(a) (1999), a hearing on appeal will be granted if an appellant expresses a desire to appear in person. An appellant, or an appellant's representative, may request a hearing before the Board at a VA field facility when submitting the substantive appeal (VA Form 9) or anytime thereafter, subject to the restrictions in 38 C.F.R. § 20.1304 (1997). Requests for such hearings before a substantive appeal has been filed will be rejected. 38 C.F.R. § 20.703 (1997). In the present case, the appellant's request for a hearing before a Member of the Board at the RO was received with the notice of disagreement in December 1996. Since this was received prior to submission of the July 1997 substantive appeal, the requests for such a hearing must be rejected. 38 C.F.R. § 20.703. However, the VA Form 9, in which the appellant indicated that he wanted a hearing, did not provide the appellant the opportunity to request a hearing before a Hearing Officer at the RO. The RO notified the appellant of his right to a hearing in the April 1997 statement of the case enclosure letter, but did not otherwise notify the appellant that his previous request for a hearing could not be accepted. 38 U.S.C.A. § 7105. The appellant's desires as to a hearing must be clarified. Under these circumstances, the Board remands this case to the RO for the following action. The RO should request the appellant to specify whether he still desires a hearing, and, if so, whether he would like an in-person Travel Board hearing, a videoconference Board hearing, or a hearing before a Hearing Officer at the RO. If the appellant requests a hearing, the RO should schedule a personal hearing in accordance with the appellant's desires and notify the appellant and his representative of the time and place of the hearing. The appellant should also be notified of his right to submit any other information, evidence, or arguments that may be pertinent to the appeal at that time. The purpose of this remand is to ensure due process of law. No action by the appellant is required until he is notified by the RO. JANE E. SHARP 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).