Citation Nr: 1329128	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  07-05 332	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to a higher initial rating for left shoulder arthritis, rated 10 percent disabling, prior to March 22, 2008, and 20 percent disabling, since March 22, 2008.

2. Entitlement to a higher initial rating for lumbar spine arthritis, rated 10 percent disabling, prior to March 22, 2008, and 20 percent disabling, since March 22, 2008.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD


William J. Jefferson III, Counsel


INTRODUCTION

The Veteran had active service from May 1970 to November 1982. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the Nashville, Tennessee, Regional Office (RO).

In November 2008, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) with respect to applications to reopen service connection claims for right and left knee disabilities, and the nature and severity service-connected left shoulder and lumbar spine conditions. In January 2009, the Board reopened and remanded the service connection claims for right and left knee disabilities, and referred the left shoulder and lumbar spine claims. Prior to being returned for appellate review, an Acting VLJ held a June 2011 hearing pertaining to the left shoulder and lumbar spine rating claims. 

In October 2012, the Board notified the Veteran of his right to provide testimony before a third VLJ because he provided testimony at his November 2008 and January 2009 Board hearing concerning his the left shoulder and lumbar spine claims, as well as of the time period that VA must receive notification of his desire to provide such testimony. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). 

In separate February 2013 decisions, the Board granted service connection for right and left knee disabilities. In the other decision, the Board remanded the claims for increased rating for left shoulder and lumbar spine disorders. The Board at that time mentioned that the Veteran had the right to present testimony before a another Veteran's Law Judge, and since he had had not responded to an October 2012 notification on the matter of another hearing, further development for a hearing was not necessary. 

In April 2013, additional evidence was received at the Board. In a June 2013 statement, the Veteran's accredited representative waived the right to initial AOJ consideration of this evidence. 38 C.F.R. § 20.1304(c) (2012). 

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

The acting Veterans Law judge that conducted a June 2011 hearing on the issues of increased ratings for the Veteran's service connected left shoulder and lumbar spine arthritis is no longer employed by the Board. 38 U.S.C.A. § 7107 (c); 38 C.F.R. § 20.707. In a response received in July 2013 regarding the opportunity to testify at another hearing, the Veteran requested to appear at a videoconference hearing 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 this hearing, and because the RO, rather than the Board, schedules videoconference hearings, the Board must remand the claims. See 38 U.S.C.A. § 7107(b); 38 C.F.R. § 20.700(a). 

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a videoconference hearing. Notify him and his representative of the date, time and location of this hearing. Put a copy of this letter in the claims file. In the event the Veteran fails to appear for his hearing, if without good cause, or changes his mind and elects not to have a hearing, also document this in the claims file.

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).



_________________________________________________
KELLI A. KORDICH
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).