Citation Nr: 1318478 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 03-09 949 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral knee disability, including as secondary to service-connected residuals of a gunshot wound of the left foot. REPRESENTATION Veteran represented by: Robert L. Rolnick, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from December 1954 to December 1956. This appeal initially came to the Board of Veterans' Appeals (Board) from a September 2002 rating decision. In December 2008, the Board denied the Veteran's claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In September 2012, the Court partially vacated the Board decision (leaving intact the rating for the Veteran's service connected gunshot wound to his left foot) and remanded the remaining issue on appeal for action consistent with the directives of a joint motion for remand (JMR). It is also noted that the Veterans Law Judge who conducted the Veteran's Board hearing in May 2007 has since retired from the Board. The 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); 38 C.F.R. § 20.707. A transcript of the hearing has been associated with the Veteran's claims folder, and the Board can make a decision on the appellate record as it stands (the undersigned has reviewed this transcript). However, the Veteran also has the right to testify at another Board hearing (although the Department of Veterans Affairs cannot pay any expenses he might incur related to a hearing). 38 C.F.R. § 20.717. If the Veteran does desire to testify at a second hearing, he should inform the Board as to whether he wants a hearing before a Veterans Law Judge of the Board: a) in Washington, DC; b) at his local regional office; or c) via video conference at his local regional office. If the Veteran (or his representative) does not respond to this request, it will be assumed that he does not want another hearing and the Board will proceed accordingly. The Veteran may fax his hearing response to the Board at (202) 343-1888, or may call (800) 923-8387. Once again, if the Veteran and/or his representative does not indicate a desire for a second hearing, the Board will assume that a second hearing is not being request and the undersigned, having reviewed the transcript of the first hearing, will make a decision based on the testimony of the Veteran in the first hearing and the other evidence of record. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND In the JMR it was provided that the Veteran reserved the right to submit additional evidence. The Veteran's representative exercised this right in May 2013, submitting a letter from a registered nurse in support of the Veteran's claim. The representative specifically requested that the Veteran's claim be sent to the Agency of Original Jurisdiction (AOJ) for consideration of this new evidence, delaying the full adjudication of his case. This action precludes the Board from further consideration of the Veteran's claim at this time, and necessitates a remand, by law. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's appeal, taking into consideration the evidence that was submitted by the Veteran's representative in May 2103. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ JOHN J. CROWLEY 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).