Citation Nr: 0813867 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 96-02 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased evaluation for chondromalacia of the left patella, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Fred J. Fleming, Attorney at Law ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from December 1977 to April 1978 and from October 1979 to November 1984. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of May 1995 from the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA), which denied a compensable rating for chondromalacia of the left knee. While the matter was on appeal, following a Board remand in November 1997, the RO in an August 1998 rating granted a 20 percent rating effective February 11, 1994, the date of his claim. Thereafter, the Board denied entitlement to a rating in excess of 20 percent disabling in an April 1999 decision. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which granted a joint motion to vacate and remand this matter to the Board for further development and readjudication. The Board remanded this matter to the RO in August 2000 to afford the veteran a personal hearing before a Veterans Law Judge (VLJ). The veteran withdrew his hearing request in June 2002. While the matter was pending, the Board undertook additional development with this issue pursuant to 38 C.F.R. § 19.9 (a)(2). However, on May 1, 2003, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) in Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (DAV) invalidated the Board's development authority under 38 C.F.R. § 19.9. In December 2003, in accordance with the holding in DAV, this appeal was remanded to the RO for additional development. Thereafter the case was returned to the Board, which remanded the matter yet again in December 2004 to correct a failure to provide adequate notice of the duty to notify and assist pursuant to 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007) It is now before the Board for further appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The most recent correspondence from the veteran is a VA Form 9 received in June 2006 which discusses the severity of his service-connected left knee disability and reveals that he marked in the hearing portion of the VA Form 9 indicating that he wants a Board hearing at the RO before a Veterans Law Judge (Travel Board hearing.) Since such hearings are scheduled by the RO (See 38 C.F.R. § 20.704(a) (2007)), the Board is remanding the case for that purpose, in order to satisfy procedural due process concerns. Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should schedule the veteran for a Travel Board hearing before a Veterans Law Judge, with appropriate notification to the veteran and his attorney. A copy of the notice to the veteran of the scheduling of the hearing should be placed in the record. 2. After the hearing is conducted, or if the veteran withdraws his hearing request or fails to report for the scheduled hearing, the case should be returned to the Board for further review. The purpose of this remand is to comply with due process of law. The Board intimates no opinion, either favorable or unfavorable, as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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). _________________________________________________ A. BRYANT 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 your appeal. 38 C.F.R. § 20.1100(b) (2007).