Citation Nr: 1325959	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-21 188A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Whether the appellant's combined disability rating of 70 percent, effective June 1, 2010, was properly calculated.  

2.  Entitlement to a total rating based on individual unemployability due to service-connected disabilities.


ATTORNEY FOR THE BOARD

K. Conner, Counsel



INTRODUCTION

The appellant served on active duty from March 1971 to January 1974.  

This matter came to the Board of Veterans' Appeals (Board) on appeal from October 2010 and March 2011 determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  

In an October 2010 rating decision, the RO, inter alia, granted service connection for a left knee disability and assigned an initial 10 percent disability rating, effective June 1, 2010.  The RO also increased the disability rating for the appellant's previously service-connected right knee disability to 60 percent, effective June 1, 2010.  In an October 2010 letter, the RO advised the appellant that, in light of its decision, his combined disability rating had been increased to 70 percent, effective June 1, 2010.  The appellant appealed this determination, arguing that the RO had miscalculated his combined disability rating by failing to add his service-connected tinnitus rating of 10 percent.  

In a March 2011 rating decision, the RO denied a total rating based on individual unemployability due to service-connected disabilities and the appellant appealed, claiming that he is unable to maintain employment due to his service-connected disabilities.  

For the reasons set forth below, a remand of this matter is necessary.  The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

In connection with his appeal, the appellant requested a hearing before a Veterans Law Judge at the RO.  In an April 2013 letter, the RO advised the appellant that the Board hearing he had requested had been scheduled for May 10, 2013.  

On May 9, 2013, the appellant telephoned the RO and indicated that he would be unable to attend the hearing because he had been scheduled for a surgical procedure the following day.  He requested that his Board hearing be rescheduled.  

Ordinarily, a request for a change in a Board hearing date must be received within 60 days from the date of the letter of notification of the time and place of the hearing, or not later than two weeks prior to the scheduled hearing date, whichever is earlier.  38 C.F.R. § 20.702(c) (2012).  After the expiration of that period, an extension will be granted only for good cause.  Examples of good cause include, but are not limited to, illness of the appellant.  Id. 

Although the appellant's request to reschedule his hearing was not timely received, the Board finds that his report that he had been scheduled to undergo surgery on the day of the hearing constitutes good cause.  Under these circumstances, the hearing must be rescheduled.  As Travel Board hearings are scheduled by the RO, a remand is necessary.  See 38 C.F.R. §§ 20.700, 20.704(a) (2012).

Accordingly, the case is REMANDED for the following action:

The appellant should be scheduled, in accordance with appropriate procedures, for a personal hearing before a Veterans Law Judge at the RO.  38 U.S.C.A. § 7107 (West 2002).  A copy of the notice to the appellant of the scheduling of the hearing should be placed in the record, keeping in mind the 30-day advance notice requirement specified at 38 C.F.R. § 19.76 (2012).

The case should then be returned to the Board for further appellate consideration, if in order.

The appellant 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).




_________________________________________________
H. N. SCHWARTZ
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).