Citation Nr: 0810451 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 89-44 380 ) DATE ) ) Received on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 60 percent for residuals of a gunshot wound (GSW) to the right thigh, for the period prior to August 5, 1999 (from September 20, 1983, through August 4, 1999). 2. Entitlement to special monthly compensation (SMC), pursuant to 38 U.S.C.A. § 1114(s), for the period between April 21, 1970 and March 1, 1984. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from November 1968 to April 1970. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from various rating actions of the RO in Boston, Massachusetts, and the RO in St. Paul, Minnesota. The veteran currently resides within the jurisdiction of the RO in New York, New York RO, and the appeal was most recently certified to the Board by that RO. The veteran testified in support of his claims during RO hearings in October 1988, October 1990 and March 1996; transcripts of these hearings are of record. In March 1998, the veteran testified during a hearing before the undersigned Veterans Law Judge (VLJ) in Washington, DC. During that hearing, the veteran confirmed that he no longer wanted to be represented in his appeal. In March 1999, the Board remanded to the RO the veteran's claims for a higher rating for GSW residuals of the right lower extremity and for SMC. In its remand, the Board noted that the veteran had filed a NOD as to the propriety of the ratings assigned for the GSW residuals of the right lower extremity assigned in a November 1970 rating decision; however, the RO had never provided him with a statement of the case (SOC) addressing those issues. The RO was instructed to issue an SOC addressing the issues of the propriety of the ratings for the GSW residuals and psychiatric disability, based on rating criteria in effect in November 1970 and the evidence of record at that time. The RO issued the SOC in October 2002 and informed the veteran that if he wished to continue his appeal on those issues, he had to file a formal appeal. The veteran did not file a substantive appeal; as such, the Board determined that the issue involving a higher rating for GSW residuals of the right lower extremity since 1970 was not on appeal. In February 2002, the veteran again testified during a hearing before the undersigned VLJ in Washington, DC. In a May 2002 remand, the Board noted that the issues listed on the title page of this action, which had been remanded to the RO in March 1999, had not yet been returned to the Board. Subsequently, the RO assigned an 80 percent rating for the service-connected residuals of a GSW to the right thigh, effective August 5, 1999, and denied the claim for SMC pursuant to 38 U.S.C.A. § 1114(s) for the period between April 21, 1970, and March 1, 1984. Thereafter, the RO returned the matters the Board. In December 2003 decision, the Board denied all of the claims on appeal, which the veteran, in turn, appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2005 Order, the Court granted a joint motion filed by counsel for both parties, setting aside those portions of the Board's decision that (1) failed to address the issue of whether the appellant was entitled to a rating in excess of 60 percent for service-connected residuals of a GSW to the right thigh, for the period prior to August 5, 1999, despite the fact that the issue of an increased rating was pending before the Board; and (2) determined that the appellant was not entitled to an award of SMC pursuant to 38 U.S.C.A. § 1114(s) for the period between April 21, 1970, and March 1, 1984. The Court remanded these matters to Board for further proceedings. [Parenthetically, the Board notes that the other matters on appeal addressed in the December 2003 Board decision were deemed abandoned and dismissed by the Court}. In May 2005, the veteran appointed the Veterans Service Organization listed on the title page of this action to represent him before the Board. The Board recognizes the change in representation. In April 2006, the veteran submitted directly to the Board additional medical evidence with a waiver of initial RO consideration. The additional evidence consists of a June 2005 Social Security Administration (SSA) decision in which the SSA Judge granted the veteran's claim for disability benefits. In July 2006, the Board remanded the matters remaining on appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development consistent with the joint motion. After accomplishing further action, the AMC denied each claim (as reflected in a September 2007 supplemental SOC (SSOC)), and returned these matters to the Board for further appellate consideration. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO, via the AMC. VA will notify the veteran when further action, on his part, is required. REMAND In an August 2007 statement, the veteran's representative requested a hearing before the equivalent of a local hearing officer at the AMC or the New York RO, and a Board hearing. Pursuant to 38 C.F.R. §§ 3.103(b)(2) and 20.700 (2006), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. See also 38 U.S.C.A. § 7107 (West 2002) (pertaining specifically to hearings before the Board). However, the AMC has no authority to hold hearings. Since the RO schedules RO hearings and video conference hearings and hearings before a Veterans Law Judge held at the RO (Travel Board), a remand of these matters to the RO is warranted. If, after an RO hearing is held or the veteran fails to appear, and any benefit sought on appeal continues to be denied, the RO should clarify whether the veteran still wants a Board hearing and, if so, what type (a hearing in Washington, DC or a video conference or a Travel Board hearing at the RO) . If the veteran wants either a video conference or a Travel Board hearing, the RO should take appropriate action to schedule such a hearing. Accordingly, these matters are hereby REMANDED to the RO for the following action: 1. The RO should schedule the veteran for a hearing before RO personnel. The RO should notify the veteran and his representative of the date and time of the hearing, and should associate a copy of such notice with the claims file. 2. After the RO hearing is held or the veteran fails to appear, the RO should readjudicate the matters remaining on appeal in light of all evidence (to include any additional RO hearing transcript and all evidence received since the September 2007 SSOC) and legal authority. 3. If any benefit sought on appeal remains denied, the RO clarify with the veteran whether he still desires a Board hearing and, if so, what type. If the veteran wants either a video conference or a Travel Board hearing, the RO should schedule such hearing before a Veterans Law Judge, at the RO, pursuant to the August 2007 request. The RO should notify the veteran and his representative of the date and time of the hearing, in accordance with 38 C.F.R. § 20.704(b) (2007).After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures. If the veteran desires a Board hearing in Washington, DC, or no longer desires any Board hearing, a signed writing to that effect should be placed in the claims file, and the claims file should be returned to the Board. 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); 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. 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 Supp. 2007). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).