Citation Nr: 1324679 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 94-44 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to a back disability. REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1955 to July 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 1993 rating decision, the RO denied the Veteran's claim for service connection for a back disability. In an April 2010 rating decision it denied a claim for service connection for erectile dysfunction. With respect to the issue of service connection for a back disability, this matter was previously before the Board in June 1996 and again in October 1997, and was remanded for additional development of the record. By decision in February 2000, the Board denied the Veteran's claim. The Veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court) which, by Order dated April 2001, granted a Joint Motion for Remand (JMR) and vacated the Board's decision. In January 2002 and July 2003, the Board remanded the claim to ensure due process and/or for additional development. The Board again denied the claim in a March 2006 determination. An August 2007 Court Order granted another JMR. In March 2008, the Board remanded the case for additional development and subsequently, in an April 2010 decision, again denied the claim of service connection for a back disability. The Veteran appealed this decision and, in February 2012, the Court issued a Memorandum Decision vacating the April 2010 Board decision and remanding the claim to the Board for further adjudication. In August 2012 the Veteran requested a hearing, and in November 2012 the Board remanded the case to afford the Veteran the opportunity to attend a hearing, which took place in May 2013. The Veteran testified at a hearing held in November 1999 by a Veterans Law Judge who is no longer employed by the Board, as well as in August 2008 and May 2013. Transcripts of these hearings have been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The law requires that the Veterans Law Judge (VLJ) who conducts a hearing on appeal must participate in any decision made on that appeal, and that the matter will be decided by a three member panel of VLJs. See 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012). The Court has held that a Veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). In August 2008, the Veteran presented testimony at a personal hearing conducted by video-conference before the undersigned VLJ. In May 2013, the Veteran presented testimony at a hearing conducted by video-conference before another VLJ. In July 2013, the Veteran, through his attorney, specifically requested a hearing with the third member of the panel who will decide his claim for entitlement to service connection for a back disability. Therefore, in accordance with Arneson, a remand of the present appeal for entitlement to service connection for a back disability is necessary to afford the Veteran his requested hearing. As the Veteran is claiming service connection for erectile dysfunction as secondary to the claimed back disability, action on that claim must be deferred as it is inextricably intertwined with the claim being remanded. See Ephraim v. Brown, 5 Vet. App. 549, 550 (1993). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Clarify whether the Veteran would like a Travel Board hearing or a Board video-conference hearing. Thereafter, schedule the Veteran for the requested hearing before a Veterans Law Judge in accordance with applicable procedures, with appropriate notification to the Veteran and his attorney. A copy of the letter notice of the time and place of the hearing should be placed in the record. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ 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).