Citation Nr: 1319295 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 05-32 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a right foot disorder, claimed as secondary to the right knee injury, dislocation of the patella. REPRESENTATION Veteran represented by: Sheila F. Campbell, Attorney WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Veteran served in the National Guard and had periods of active duty for training (ACDUTRA), to include from February 1982 to July 1982, and then from June 4, 1983 to June 18, 1983. This matter is before the Board of Veterans' Appeals (Board) from October 2004 and August 2005 decisions by the RO that declined to reopen the claims of service connection for residuals of injuries to the right knee and left foot and denied service connection for right foot and right leg disorders, claimed as secondary to a right knee disorder. In June 2007, the Board remanded the case for additional development, to include providing proper Veterans Claims Assistance Act (VCAA) notification; assisting the Veteran in obtaining any identified records; requesting Social Security Administration (SSA) records and treatment records, from 1984 and 1985 from St. Vincent's Hospital. In January 2007, the Veteran testified at a hearing before Veterans Law Judge (VLJ) S. L. Wilkens. In December 2008, the Veteran testified at a hearing before the undersigned. Transcripts of both hearings have been associated with the claims file. In November 2009, the Board determined that new and material evidence had been received to reopen the claims of service connection for right knee and left foot disorders. The Board also granted service connection for the right knee disorder. The Board also remanded the claims of service connection for residuals of a soft tissue injury to the left foot as well as right foot and right leg disorders. In that decision, the Board also referred the issue of service connection for a right hip disorder. In December 2009, the RO effectuated the grant of service connection for residuals of the right knee injury to include separate ratings of 10 percent for right knee arthritis and 30 percent for right knee subluxation, effective in June 2004. And since the Veteran did not, in response, appeal either the ratings or effective date assigned for those disabilities, they are no longer at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In March 2010, the RO granted service connection for right hip trochanter bursitis and assigned a 10 percent rating, effective in December 2008. In August 2010, the RO received a statement from the Veteran's attorney, which disagreed with the 10 percent evaluation assigned to this disability as well as the total combined rating that was calculated for his service connected disabilities. In December 2012, the RO granted service connection for soft tissue injury of the left foot and ankle and assigned a 10 percent rating effective in January 2005. The RO also granted service connection for limitation of extension of the right hip (also claimed as right leg disability) and assigned a 0 percent rating effective in June 2004. The Veteran did not appeal the assigned ratings or effective dates and they are no longer at issue. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND As noted above, in March 2010, the RO granted service connection for right hip trochanter bursitis and assigned a 10 percent rating effective in December 2008. In August 2010, the RO received the Veteran's disagreement with the assigned 10 percent evaluation as well as the total combined rating calculated for his service connected disabilities. However, no statement of the case (SOC) regarding this matter has been furnished to the Veteran. As such, the claim must now be remanded to allow the RO to provide the Veteran with an appropriate SOC on the issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issue of service connection for a right foot disorder will also be remanded to afford the Veteran an opportunity to testify at a hearing before the third VLJ who will participate in the panel decision on this issue. VA law requires that the VLJ 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. Additionally, when two hearings have been held by different VLJs concerning the same issue or issues, the law also requires that the Board assign a third VLJ to decide that issue or issues because a proceeding before the Board must be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. In Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011), the United States Court of Appeals for Veterans Claims (Court) held 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 VLJs concerning the issue of service connection for a right foot disorder. The first hearing was held in January 2007 and the second hearing was held in in December 2008. Accordingly, pursuant to section 20.707 and the Court's holding in Arneson, a letter was sent to the Veteran offering him the opportunity to testify at a hearing before the third judge who will participate in the panel decision. The Veteran indicated in a May 2013 response to this letter that he wished to testify at a hearing by videoconference before a third VLJ. Therefore, on remand, the Veteran should be scheduled for a videoconference hearing before the third VLJ who will participate in the panel decision. Accordingly, the case is REMANDED for the following action: 1. Issue a SOC to the Veteran and his authorized representative addressing the issue of entitlement to service connection for a right foot disorder. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order. 2. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for a videoconference hearing before a member of the Board pursuant to Arneson. The Veteran 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). _________________________________________________ KELLI A. KORDICH Acting 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).