Citation Nr: 1307697	
Decision Date: 03/07/13    Archive Date: 03/11/13

DOCKET NO.  11-02 815	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for a left knee disorder. 


REPRESENTATION

Appellant (Veteran) represented by:	South Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel


INTRODUCTION

The Veteran had active military service from July 1945 to December 1945.

The appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to service connection for a left knee disorder, therein characterized as left knee osteoarthritis.

In August 2011, the Board issued a decision in the above matter denying the Veteran's claim.  Following the promulgation of the decision, the Board received additional relevant evidence consisting of morning reports from the Veteran's active service.  The Board was unable to consider this evidence in the August 2011 decision as it had not been received by the Board and associated with the claims file prior to the decision.  As the newly submitted evidence tended to support the Veteran's assertion that he received medical treatment while in service, the Board decided in June 2012 to reconsider the August 2011 denial of his claim.  As such, in the June 2012 decision, the Board vacated its August 2011 decision.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012).  Following the vacatur, the Board remanded the claim for consideration by the agency of original jurisdiction (AOJ) of the additional evidence, and for clarification regarding whether the Veteran wanted to appear before Board hearing.  

Based upon an additional review of the record, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


REMAND

In the Board's June 2012 remand, the Board noted that the Veteran requested a Travel Board hearing in a March 2012 letter.  Pursuant to 38 C.F.R. § 20.700 (2012), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person.  See also 38 U.S.C.A. § 7107 (West 2002) (pertaining specifically to hearings before the Board).  The Board also notes that certain statements of record indicate that the Veteran did not desire a hearing before the Board.  As such, the Board requested that the RO seek clarification from the Veteran regarding whether he desired a hearing.  

The record indicates that the Veteran was not contacted and requested to clarify whether he desired a hearing.  Therefore, a new remand is required to comply with the holding of Stegall v. West, 11 Vet. App. 268, 271 (1998) ("a remand by ... the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders.  We hold further that a remand by ... the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand.")

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The Veteran and his representative should be contacted and asked to clarify and confirm his request for a Travel Board hearing before a member of the Board sitting at the RO.  If the Veteran desires such a hearing, it should be scheduled expeditiously in accordance with the provisions regarding cases that have been advanced on the docket.  If the Veteran no longer desires a hearing, the case should be returned to the Board for appellate review.

2.  The issue on appeal should be reviewed with consideration of all applicable laws and regulations.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond.  

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 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).



_________________________________________________
MICHAEL A. PAPPAS
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).