Citation Nr: 1327213	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  12-13 029	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to a disability evaluation in excess of 10 percent for the right knee disability.

2.  Entitlement to service connection for a cervical spine disorder.


REPRESENTATION

Appellant represented by:	Kenneth L. LaVan, Attorney


ATTORNEY FOR THE BOARD

M. Hannan, Counsel



INTRODUCTION

The Veteran appellant had active service in the United States Army from December 1964 to November 1967.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Original jurisdiction of the appellant's claim resides in the RO in Atlanta, Georgia.

The issue of entitlement to nonservice-connected pension benefits has been raised by the record, but that issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over that matter, and it is referred to the AOJ for appropriate action.

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the appellant if further action is required.


REMAND

In his May 2012 VA Form 9, the appellant requested a Board videoconference hearing.  The RO subsequently sent the appellant a letter, in April 2013, and notified him that he had been scheduled for a Board videoconference hearing at the RO on May 10, 2013.  Prior to that date, the appellant's attorney wrote to VA and requested a continuance.  The attorney stated that he had requested a copy of the Veteran's claims file in May 2012, and that he had not yet received it.  The appellant's attorney also indicated that the Veteran still wanted to present testimony at a Board hearing and requested that a new hearing date be scheduled.

Therefore, under the provisions of 38 C.F.R. § 20.704, the undersigned Veterans Law Judge, before whom the Veteran had previously been scheduled to appear at a Board videoconference hearing, finds that the Veteran has shown good cause for not appearing at his May 2013 hearing.  In view of the foregoing, the appeal must be returned to the St. Petersburg RO so that the Veteran can be scheduled for a hearing.  38 U.S.C.A. § 7107; 38 C.F.R. §§ 19.75, 19.76, 20.703, 20.704.  

Accordingly, the case is REMANDED for the following action: 

Schedule the appellant for another hearing before a Veterans Law Judge, as the docket permits and specifically:

Offer him the option of a Travel Board hearing or a videoconference hearing, whichever he prefers.  

Notify the appellant and his attorney of the date, time, and place of such a hearing by letters mailed to their respective current addresses of record.  

Advise the appellant that if he desires to withdraw the hearing request prior to the hearing, he may do so in writing pursuant to applicable provisions.  

All correspondence pertaining to this matter must be associated with the claims file.

After the hearing is conducted, or if the hearing request is withdrawn in writing prior to the hearing being conducted, the case should be returned to the Board in accordance with the applicable procedures.

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).

These claims 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).



_________________________________________________
KATHLEEN K. GALLAGHER
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).