Citation Nr: 1317969	
Decision Date: 06/03/13    Archive Date: 06/11/13

DOCKET NO.  05-21 883	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUES

1.  Entitlement to service connection for a bilateral knee disability, to include as secondary to bilateral pes planus.

2.  Entitlement to service connection for a bilateral ankle disability, to include as secondary to bilateral pes planus.


REPRESENTATION

Appellant represented by:	Penelope E. Gronbeck, Attorney


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from December 1980 to December 1984.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for osteoarthritis of the knees and ankles.

In July 2006, the Veteran testified at a travel board hearing at the RO before an undersigned Veterans Law Judge (VLJ).  In August 2008, the Veteran testified at a videoconference hearing before another undersigned VLJ.  Transcripts of the hearings have been associated with the claims file.

The Board denied the Veteran's claims for service connection for bilateral knee and ankle disabilities in an August 2007 decision.  Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In a January 2008 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the August 2007 decision.  The Court granted the JMR in a January 2008 Order.  In May 2008, the Board remanded the claims for further development.  In December 2008, the Board again denied the Veteran's claims.  The Veteran again appealed to the Court, and, in a November 2009 JMR, the parties moved the Court to vacate the December 2008 decision, which the Court granted.  In April 2010, the Board again remanded the claims for further development.  These issues return to the Board for further consideration.

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the appellant if further action is required.


REMAND

The Board notes that all VLJs who conduct hearings must participate in making the final determination of the claims on which testimony was received.  38 U.S.C.A 
§ 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012).  By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members.  See 38 U.S.C.A. § 7102(a).  Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held.  The appeal is then ready for appellate review.  In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the Court interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision.

In this case, the Veteran was sent a letter dated February 28, 2013, advising him of his right to a third hearing pursuant to Arneson, supra.  The Veteran, through his attorney, responded in March 2013 that he would like to have a hearing before a third VLJ.  In May 2013, the Veteran, through his attorney, requested that the hearing be conducted by videoconference.  As such, the Veteran's requested hearing should be scheduled.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a videoconference hearing before a VLJ.  Provide appropriate notice of the date, time, and location of the requested hearing to the Veteran and his attorney.

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).



__________________________			____________________________
      U. R. POWELL					STEVEN D. REISS
      Veterans Law Judge,				          Veterans Law Judge,
Board of Veterans' Appeals			     Board of Veterans' Appeals



_________________________________________________
K. A. BANFIELD
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).