Citation Nr: 1324025	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  12-18 874	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
North Little Rock, Arkansas


THE ISSUE

Entitlement to a rating in excess of 40 percent for residuals of a fracture of the left ankle.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Barstow, Counsel



INTRODUCTION

The Veteran had active military service from May 1981 to December 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) North Little Rock, Arkansas.  

This appeal stems from an increased rating claim received in March 2008.  An April 2009 rating decision denied a rating in excess of 20 percent; a timely substantive appeal was received in October 2009.  In a November 2010 rating decision, the RO assigned a 40 percent rating, effective the date of the March 2008 claim.  The Veteran withdrew his pending appeal in December 2010 as the assigned 40 percent rating is the maximum allowable schedular rating.  However, in April 2011, the Veteran submitted a notice of disagreement with the November 2010 rating decision, giving rise to the present appeal.  Since the November 2010 rating decision assigned the increased rating effective the date of the March 2008 claim, the Board considers that claim to remain in appellate status, notwithstanding the December 2010 withdrawal.  

The appeal is REMANDED to the VA RO.  VA will notify the Veteran if further action is required.


REMAND

The Veteran was scheduled for a videoconference hearing before a Veterans Law Judge (VLJ) in July 2013.  Two days prior to the scheduled hearing, the Veteran submitted a facsimile request to the Board to reschedule as he was not going to be in Arkansas on the day of the hearing.  Good cause to reschedule that hearing has been shown and the Veteran's motion to reschedule his hearing is granted.  38 C.F.R. § 20.700, 20.702 (2012).

A basic principle of veterans' law stipulates that the Board shall decide an appeal only after affording the claimant an opportunity for a hearing.  38 U.S.C.A. § 7104 (West 2002).  A hearing on appeal before the Board will be granted if an appellant expresses a desire to appear in person.  38 C.F.R. § 20.700.  Consequently, a remand of the present appeal is therefore necessary to afford the Veteran his requested hearing.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a videoconference hearing before a VLJ.  The Veteran should be notified in writing of the date, time, and location of the hearing.  After the hearing is conducted, or if the Veteran withdraws his 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 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).



_________________________________________________
MICHAEL MARTIN 
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).