Citation Nr: 1308037	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  07-33 323	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

Entitlement to an initial evaluation in excess of 10 percent for status-post right foot sesamoid fracture.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel

INTRODUCTION

The Veteran served on active duty from December 1993 to October 2005.

This matter comes to the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  

In September 2010 the Veteran testified before a Veterans Law Judge (who has since retired) at a Board hearing at the RO.  A transcript of the testimony offered at this hearing has been associated with the record.

In January 2011 this matter was last before the Board at which time it was remanded for further development.  Following the Board's remand, the RO increased the evaluation of the Veteran's status-post right foot sesamoid fracture to 10 percent disabling effective October 19, 2005, the day following his discharge.  38 U.S.C.A. § 5110 (b)(1).  Because the maximum benefit was not granted, the issue remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Also, in January 2011 the Board dismissed the Veteran's claim of entitlement to service connection for hypertensive vascular disease, claimed as hyperlipidemia, and remanded a claim for service connection of residuals of a left ankle sprain.  In a September 2011 rating decision, the RO granted service connection for residuals of an ankle sprain.  Accordingly, these issues are not currently before the Board.  

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

As previously noted, the Veteran was scheduled for a hearing before a Veterans Law Judge, which was duly held in September 2010.  During the course of this appeal, the presiding judge retired from the Board.  The law and regulations require that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal.  See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013).  Thus, in correspondence dated January 2013, the Veteran was notified of the retirement of the Veterans Law Judge who presided over his September 2010 hearing.  The Veteran was offered the opportunity to be scheduled for another hearing before an active Veterans Law Judge, pursuant to 38 C.F.R. § 20.717 (2012).  The Veteran responded in the affirmative in February 2013, requesting that he be provided a new Board hearing, to be held at the RO before a traveling Veterans Law Judge.  The appeal is therefore remanded for appropriate action pursuant to this request.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a Travel Board hearing before a Veterans Law Judge at the RO, in accordance with applicable procedures; notice should be sent to the Veteran as required. 

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).



_________________________________________________
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).