Citation Nr: 1316286 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 03-20 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for right knee patellar tendonitis with cartilage loss. 2. Entitlement to an evaluation in excess of 10 percent for recurrent tendonitis with cartilage loss of the left knee. (The issues of whether new and material evidence has been received to reopen a claim for service connection for a thyroid disability, entitlement to service connection for a cardiac disability, entitlement to service connection for a right elbow disability, and entitlement to an effective date earlier than March 4, 2002, for the award of a 10 percent disability evaluation for recurrent tendonitis with cartilage loss of the left knee are the subjects of a separate single judge decision.) REPRESENTATION Appellant represented by: Jeffrey J. Bunten, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from January 1971 to September 1977. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2012, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. 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 By way of history, by rating decision dated in December 1977, service connection was established for recurrent tendonitis of the left knee; and a noncompensable (zero percent) evaluation was assigned from September 7, 1977. In March 2002, the Veteran requested service connection for, inter alia, a bilateral knee condition. By rating decision dated in July 2002, service connection was established for right knee patellar tendonitis and a 10 percent evaluation was assigned from March 4, 2002. In addition, the evaluation for the Veteran's recurrent tendonitis of the left knee was increased to 10 percent from March 4, 2002. In July 2003, the RO received the Veteran's notice of disagreement with the July 2002 rating decision with respect to the evaluations assigned for both knees. In a Decision Review Officer (DRO) Decision dated in January 2004, service connection was established for laxity of the right knee; and a 10 percent evaluation was assigned from December 24, 2003. In February 2004, the RO received the Veteran's notice of disagreement with the effective date assigned for service connection for laxity of the right knee. By a DRO Decision dated in March 2004, an earlier effective date of December 24, 2002, was assigned for service connection for laxity of the right knee. In March 2004, the Veteran perfected his appeal with respect to the evaluations assigned for right knee patellar tendonitis and left knee recurrent tendonitis. In March 2005, the Veteran testified before Veterans Law Judge Joy McDonald at a videoconference hearing. An August 2005 Board Decision remanded these issues for additional development. In April 2006, the Veteran filed a claim for an earlier effective date for the award of service connection for left knee recurrent tendonitis which was denied by an August 2006 rating decision. In September 2006, the Veteran filed a notice of disagreement with, inter alia, the denial of an earlier effective date for service connection for left knee recurrent tendonitis. In a February 2008 decision, the Board denied increased evaluations for the Veteran's left knee recurrent tendonitis, right knee patellar tendonitis, and right knee laxity. The Veteran appealed the Board's February 2008 decision with respect to the issues of entitlement to increased evaluations for left knee recurrent tendonitis and right knee patellar tendonitis to the United States Court of Appeals for Veterans Claims (Court). In a December 2008 Order, the Court remanded that part of the Board's February 2008 decision with regard to these issues for development consistent with the Joint Motion for Partial Remand. In an August 2010 Decision, the Board remanded these issues for additional development. In April 2012, the Veteran testified before Veterans Law Judge Michael Lyon at a videoconference hearing at which time he took testimony regarding the symptomatology of his right and left knee conditions. VA law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Additionally, when two hearings have been held by different Veterans Law Judges concerning the same issue or issues, the law also requires that the Board assign a third Veterans Law Judge to decide that issue or issues because a proceeding before the Board must be assigned either to an individual Veterans Law Judge "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102(a) (West 2002); 38 C.F.R. § 19.3 (2012). In this case, as there were two hearings conducted by two different Veterans Law Judges, a third Veterans Law Judge is required for a panel decision in this case. The Court held, in Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011), that under § 20.707, a claimant must be afforded an opportunity for a hearing before all the Board members who will ultimately decide his appeal. Thus, if the claimant's appeal is assigned to a Board panel, that claimant must be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case. Id. In this case, the Veteran presented testimony at two hearings before two different Veterans Law Judges concerning whether he is entitled to increased evaluations for his service-connected left knee tendonitis and right knee patellar tendonitis. Accordingly, pursuant to 38 C.F.R. § 20.707 and the Court's holding in Arneson, an April 2013 letter was sent to the Veteran offering him the opportunity to testify at a hearing before a third judge who would participate in the panel decision. The Veteran was requested to sign and date the second page of the letter and check the box pertaining to his selection. He responded in May 2013; he signed and dated the form and indicated, by checking one of the options, that he wanted to appear at a third hearing at his local RO before a third Board Veterans Law Judge who would be assigned to decide his appeal on the issues addressed at both his prior hearings. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a Travel Board hearing before a third Veterans Law Judge at his local RO. Provide the Veteran and his attorney appropriate advance written notice of the date, time, and location of his requested 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 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). _________________________________________________ JOY A. MCDONALD 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).