Citation Nr: 1126830	
Decision Date: 07/19/11    Archive Date: 07/29/11

DOCKET NO.  10-06 612	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Evaluation of residuals of right shoulder injury with degenerative changes, currently evaluated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel



INTRODUCTION

The appellant served on active duty from September 1976 to January 1980.

This matter came before the Board of Veterans' Appeals (the Board) on appeal from a November 2008 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which granted a 10 percent initial evaluation for right shoulder disability.

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 appellant seeks an initial evaluation for right shoulder disability greater than the currently assigned 10 percent evaluation.

VA examinations were conducted in August 2008, February 2009, and November 2009, and VA treatment records dated from July 2002 to July 2009 are associated with the claims folder.

In a statement dated May 2010, the appellant requested a Board hearing at the RO, and reported that he was 100 percent disabled.  He reported that additional evidence would be submitted.

The Board observes that this request was made within 90 days of certification of the appeal to the Board.  Regulations provide that a claimant may request a personal hearing within 90 days following notification of certification and transfer of record.  38 C.F.R. § 20.1304(a).  Regulations further provide that claimants have a right to a hearing.  38 C.F.R. § 20.700.  In view of the governing regulations, remand is necessary so that the appellant may be scheduled for a Travel Board hearing before a Veterans Law Judge.

As an aside, the Board notes that, in April 2011 correspondence, the appellant requested that VA obtain Austin VA Clinic records dated from April 1, 2011.  He reported that he has nerve damage of the right shoulder, which was documented in these records.  VA's duty to assist includes obtaining records in the custody of a Federal department or agency.  See 38 C.F.R. § 3.159(c)(2).  However, in view of the timing of the appellant's hearing request, further evidentiary development must wait.

Accordingly, the case is REMANDED for the following action:

The appellant should be scheduled for a Travel Board hearing before a Veterans Law Judge at the RO.

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. 2010).



_________________________________________________
H. N. SCHWARTZ
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) (2010).