Citation Nr: 1303167	
Decision Date: 01/30/13    Archive Date: 02/05/13

DOCKET NO.  10-05 056	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an evaluation in excess of 20 percent prior to July 19, 2012, and 60 percent thereafter for lumbar spondylosis with canal stenosis and nerve root compression.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel
INTRODUCTION

The Veteran served on active duty from February 1964 to February 1966.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In an October 2012 rating decision, the RO increased the Veteran's service-connected lumbar spondylosis with canal stenosis and nerve root compression to 60 percent disabling, effective July 19, 2012.  Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35 (1993).  

In September 2011, the Veteran testified at a Travel Board hearing before a Veterans Law Judge ("VLJ") who is no longer employed at the Board.  A copy of the hearing transcript is of record.  

In November 2011, the Board remanded the claim for additional development.  The case has been returned to the Board for further appellate review.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.  

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 Veteran testified before a VLJ at a Travel Board hearing in September 2011; however, that VLJ is no longer at the Board.  The law requires that the VLJ who conducted a hearing shall participate in making the final determination of the claim.  38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012).  By a November 2012 letter, the Veteran was given the opportunity to request another Board hearing.  In December 2012, the Veteran requested a new Board hearing via video conference at his local RO.  Since the RO schedules video conference hearings, a remand of this matter is warranted.  

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a Board hearing via video conference at the earliest available opportunity.  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) (2012).  After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures.  

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. 2012).



_________________________________________________
Vito A. Clementi
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) (2012).