Citation Nr: 1319154 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-33 975A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether to vacate that part of the January 2012 Board decision dismissing the issue of CUE in a January 1986 rating decision which denied service connection for a lumbar spine disability. 2. Whether a January 1986 rating decision which denied service connection for a lumbar spine disability, was clearly and unmistakably erroneous (CUE). 3. Whether to vacate that part of the January 2012 Board decision denying service connection for a cervical spine disability. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to a higher initial rating for right leg scars due to varicose vein stripping (right leg scars), rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from March 1969 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2005 decision of the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The August 2005 RO decision granted service connection for right leg scars, assigning an initial noncompensable rating; denied service connection for a cervical spine disability; and determined a January 1986 RO decision, denying service connection for a lumbar spine disability, was not CUE. In a January 2012 decision the Board dismissed the CUE claim, denied the claim for service connection for a cervical spine disability, and remanded the claim for an initial compensable rating for scars. A March 2013 RO decision assigned an initial 10 percent rating for right leg scars. The issues of entitlement to service connection for a cervical spine disability, a higher initial rating for right leg scars, and an allegation of CUE in a January 1986 RO decision denying service connection for a lumbar spine disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran failed to appear for the March 25, 2010, Board hearing in connection with the claims adjudicated in the January 5, 2012 Board decision which dismissed a claim alleging CUE in a January 1986 RO decision and denied a claim for service connection claim for a cervical spine disability. 2. The Veteran demonstrated good cause for his failure to appear and accepted the RO's offer to testify via videoconference. 3. A video conference in connection with the appeal has not been scheduled. . CONCLUSIONS OF LAW 1. The criteria to vacate the January 5, 2012, Board decision addressing whether a January 1986 rating decision which denied service connection for a lumbar spine disability was CUE are met. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). 2. The criteria to vacate the January 5, 2012, Board decision addressing entitlement to service connection for a cervical spine disability are met. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran was to provide testimony before the Board on March 25, 2010, pertaining to his appeal of August 2005 RO determinations declining to reopen a service connection claim for a lumbar spine, denying service connection for a cervical spine disability, assigning a noncompensable rating for right leg scars, and finding the absence of CUE in a January 1986 RO decision that denied service connection for a lumbar spine disability, but he failed to appear. A March 2010 VA Report of Contact documents the Veteran's good cause for failing to appear at the hearing and his request to testify via videoconference at a site in California. The record does not reflect that a Board videoconference hearing was subsequently scheduled, nor does it reflect that the Veteran withdrew his request. See 38 C.F.R. §§ 20.702, 20.703, 20.704. In view of the outstanding request for a Board hearing, the January 5, 2012, Board's adjudication of the service connection claim for a cervical spine disability and the claim alleging CUE in a January 1986 RO decision, which denied service connection for a lumbar spine disability, was premature; vacatur is warranted. 38 U.S.C.A. § 7104(a); 38 C.F.R.§ 20.904. The Board will not, however, disturb that portion of the January 5, 2012 adjudication that reopened and granted the service connection claim for a lumbar spine disability because the adjudication resulted in a full grant of the benefits sought on appeal. ORDER The January 5, 2012, Board decision addressing whether a January 1986 rating decision, which denied service connection for a lumbar spine disability was CUE is vacated. The January 5, 2012, Board decision addressing entitlement to service connection for a cervical spine disability is vacated. REMAND The Veteran failed to appear for his the initial Board hearing scheduled in connection with his appeal but indicated he did not appear because of road conditions and he accepted the RO's offer to subsequently testify via videoconference, but at a location in California rather than Reno, Nevada. See VA Rpt. of Contact, Mar. 25, 2010. The record does not reflect any efforts by the RO to reschedule the hearing nor does the evidence indicate the request was withdrawn. The Veteran must be scheduled for a Travel Board hearing via videoconference on remand. See 38 U.S.C.A. § 7107; 38 C.F.R. § 20.707. His specific request to have the hearing at an RO in California should be accommodated. Accordingly, the case is REMANDED for the following action: Contact the Veteran and schedule him for a Board hearing via videoconference, if at all possible, at a location convenient for him in California. After the hearing is conducted, or the Veteran withdraws the hearing request, or he fails to report for the scheduled hearing, the claims folder is to be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs