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).