Citation Nr: 1311532	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO.  10-41 977	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an increased evaluation for a postoperative lateral meniscus tear of the left knee with chondromalacia, currently assigned a 10 percent rating.


ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1980 to December 2000.
      
This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

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

A review of the claims file shows that the Veteran submitted a request in February 2010 for a local hearing with a decision review officer (DRO).  In a September 2011 response to a hearing clarification letter, the Veteran requested a video conference hearing before the Board.  In that same form, he also made a notation in the paragraph discussing the option of both a local DRO hearing and a Board hearing, which could be construed as a request for both hearings.  However, to date, the Veteran has not testified at any hearing before a DRO or the Board.

In light of these circumstances and to afford the Veteran all due consideration, the Board finds that the RO should contact the Veteran to clarify whether he still wants a DRO hearing.

In regard to a hearing before the Board, the Veteran was scheduled to testify before a Veterans Law Judge (VLJ) by videoconference from the RO in March 2013.  However, on the day of the hearing, the Veteran failed to appear for that proceeding.  Nevertheless, a review of the claims file, to include the Virtual VA paperless claims processing system (Virtual VA) electronic file, shows that the Veteran subsequently contacted VA one week later.  Specifically, the March 2013 report of contact form shows that the Veteran reported that he spoke with someone at VA during the week prior to his scheduled hearing and indicated that he was unable to attend that hearing due to upcoming knee surgery.  Based on these circumstances, upon remand, the Veteran should be provided another opportunity testify at a hearing before the Board.

Accordingly, the case is REMANDED for the following action:

1.  The RO should contact the Veteran to clarify whether he would still like a hearing before a DRO.  The RO should respond appropriately to any clarification received from the Veteran.

2.  The RO should take appropriate steps in order to schedule the Veteran for a personal hearing with a Veterans Law Judge of the Board via video conference at the local office in accordance with his 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 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).



_________________________________________________
JESSICA J. WILLS
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).