Citation Nr: 1125563	
Decision Date: 07/07/11    Archive Date: 07/15/11

DOCKET NO.  09-41 901	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

L. Barstow, Associate Counsel

INTRODUCTION

The Veteran had active military service from October 1965 to October 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio granted service connection PTSD (30%, from December 11, 2008).  Due to the location of the Veteran's residence, jurisdiction of his appeal was transferred to the RO in North Little Rock, Arkansas.

In July 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  The Veteran also testified at a second videoconference hearing before a different VLJ in March 2011.  Transcripts of both hearings have been associated with the claims file.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

Regrettably, a remand is necessary.  As noted in the Introduction, the Veteran testified before two different VLJs at hearings in July 2010 and March 2011.  

The law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal, and that the matter will be decided by a three member panel of VLJs.  See 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2010).  The United States Court of Appeals for Veterans Claims (Court) recently held that a veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal.  Arneson v. Shinseki, No. 09-0953 (U.S. Vet. App. Apr. 20, 2011).  

Pursuant to the Court's recent holding in Arneson, a letter was sent to the Veteran in May 2011 notifying him that he had the option of having a third hearing with a VLJ who would be assigned to the panel to decide his appeal.  In June 2011, the Veteran responded that he did wish to appear at a hearing at the local Regional Office before a third VLJ.  Therefore, in accordance with Arneson, a remand of the present appeal for an initial rating in excess of 30 percent for PTSD is necessary to afford the Veteran his requested hearing.

Accordingly, the case is REMANDED for the following action:

Take appropriate steps to schedule the Veteran for an in-person hearing at the RO with a VLJ in accordance with the Veteran's request.  The Veteran should be notified in writing of the date, time, and location of the hearing.  After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures.

The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).  


_________________________________________________
THERESA M. CATINO 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court.  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) (2010).