Citation Nr: 1327112 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 02-17 695A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as due to an undiagnosed illness. 2. Entitlement to an initial rating in excess of 30 percent for anxiety disorder not otherwise specified (NOS) with depressive disorder NOS (claimed as post-traumatic stress disorder (PTSD)). 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from November 1989 to June 1993, to include service in the Southwest Asia Theater of operations during the Persian Gulf War from December 190 to June 1991. This case was previously before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied claims for service connection for several disabilities, to include a left knee disorder. The case was initially remanded by the Board to the RO in October 2004 for further development. Following completion of the development, the RO continued to deny all of the claimed benefits, and the case was returned to the Board for further consideration. In a September 2007 Board decision, the Board denied service connection for PTSD, and disabilities manifested by elevated liver function tests; left knee pain; shortness of breath; insomnia, night sweats, and fatigue; arthralgias; and feelings of paralysis, to include as due to undiagnosed illness. Thereafter, the Veteran filed a timely appeal of the September 2007 Board decision to the United States Court of Appeals for Veterans Claims (Court), and pursuant to a March 2009 Memorandum Decision, the Court vacated and remanded the issues of entitlement to service connection for PTSD and a left knee disability, and dismissed the issues of entitlement to service connection for disability manifested by elevated liver function tests, shortness of breath, insomnia, night sweats, and fatigue, arthralgias, and feelings of paralysis, to include as due to undiagnosed illness. Consequently, the dismissed issues are no longer subjects for further appellate review. The Board remanded the issues of entitlement to service connection for PTSD and a left knee disability in March 2010 for development pursuant to the directives of the March 2009 Court decision. Following this development, the RO continued to deny the claim for service connection for a left knee disability. See June 2011 Supplemental Statement of the Case. Also following the development requested in the March 2010 remand, a June 2011 rating decision granted service connection for a psychiatric disability labeled as "anxiety disorder NOS with depressive disorder NOS claimed as PTSD." As there is no distinction in the manner in which ratings for psychiatric disabilities (aside from eating disorders) are assigned based on the particular psychiatric diagnosis rendered, the issue of entitlement to service connection for the claimed psychiatric disability is thus no longer before the Board. See 38 C.F.R. § 4.130 (2013). However, as the Veteran perfected an appeal to the Board with respect to the rating assigned for the psychiatric disability assigned by the June 2011 rating decision, that additional issue is before the Board as listed on the Title Page. Another additional issue perfected to the Board is, as listed on the Title Page, entitlement to TDIU. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In the September 2012 and April 2013 substantive appeals with the respect to the issues of, respectively, entitlement to an increased rating for the service connected psychiatric disability and TDIU, it was requested that the Veteran be afforded a videoconference hearing at the RO before a before a Veterans Law Judge. Because the Board may not proceed with an adjudication of the Veteran's claims without affording him the opportunity for such a hearing, and because videoconference hearings are scheduled by the RO, a remand is required. See 38 U.S.C.A. § 7107(b); 38 C.F.R. § 20.700. [This hearing will also provide the Veteran and his attorney with the opportunity to present a testimonial response to the continued denial of the claim for service connection for a left knee disability. It is also possible that testimony solicited with respect to the additional issues to which appeals have been perfected could be relevant to the claim for service connection for a left knee disability and/or identify for the RO additional treatment records to obtain which may be relevant to this claim.] Accordingly, the case is REMANDED for the following action: The Veteran should be scheduled for a videoconference before a Veterans Law Judge at the RO pursuant to 38 U.S.C.A. § 7107(e). The case should then be processed in accordance with established appellate practices. The appellant 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). _________________________________________________ T. MAINELLI 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).