Citation Nr: 1330950 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-24 427 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for a bilateral knee disability has been received. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: To be clarified ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to January 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2007 rating decision in which the RO denied entitlement to service connection for a back condition and determined that new and material evidence had not been submitted to reopen a previously denied claim of service connection for a bilateral knee condition. In November 2008, the Veteran filed a notice of disagreement (NOD) as to the aforementioned claims. A statement of the case (SOC) was issued May 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month in July 2009. After additional evidence and argument was associated with the claims file, a supplemental SOC was issued in July 2009. The appeal has been certified to the Board for adjudication. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals documents which are either duplicative of those already in the claims file or not pertinent to the present appeal. For reasons discussed below, the matters on appeal are being remanded to the RO. VA will notify the Veteran when further action, on his part, is required.. REMAND Review of the claims file reveals that, in August 2012, the Veteran submitted a written statement requesting that he be afforded a Board hearing conducted via video conference at his local RO (Board video-conference hearing). In September 2013, the American Legion submitted a statement requesting that the Veteran's August 2012 request for a Board vide- conference hearing be granted. The Veteran has not yet been afforded a Board hearing, and a review of the file does not reveal that he has withdrawn his request for such hearing. Hence, there remains an outstanding Board hearing request. Pursuant to 38 C.F.R. § 20.700 (2012), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. See also 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. §§ 20.703, 20.704 (2012) (pertaining specifically to hearings before the Board). In light of the above, and because the RO schedules video-conference hearings, a remand of the matters on appeal to the RO for the requested hearing is warranted. Additionally, however, the Board finds that clarification is needed with respect to the Veteran's current representative. In September 2005, the Veteran granted power of attorney in favor of the service organization, the American Legion. See September 2005 VA Form 21-22. There is no indication that the Veteran has revoked the power of attorney in favor of the American Legion; however, in August 2008, the Veteran submitted a power of attorney in favor of private attorney Anthony P. Thrubis, who indicated that he was working pro bono with the Veterans Law Clinic at the University of Detroit Mercy Law School. See July 2008 VA Form 21-22a, Appointment of Individual as Claimant's Representative; August 2008 statement from A.P.T. It does not appear that the RO accepted the power of attorney in favor of the private attorney, as the subsequent statement of the case (issued in May 2009) was sent to the American Legion. To add to the confusion, the record reflects that, in September 2012, a staff attorney from the University of Detroit Mercy Veterans Law Clinic filed with VA a FOIA request to VA on behalf of the Veteran. Accordingly, to ensure that notice of the scheduled hearing is sent to the correct representative, on remand, the Veteran should be requested to clarify his current representative by executing a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, or VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of the attorney or organization he desires to currently represent him. If the Veteran designates the Veterans Law Clinic at the University of Detroit Mercy Law School or any accredited attorney, agent, or service organization as his representative, the Veteran should be requested to revoke his September 2005 power of attorney in favor of the American Legion. Accordingly, theae matters are hereby REMANDED for the following action: 1. Request that the Veteran clarify his current representative by executing a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, or VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of the attorney or organization he desires to currently represent him. If appropriate, request that he revoke the previously executed September 2005 power of attorney in favor of the American Legion. Any response from the Veteran in this regard should be associated with the claims file. 2. Once representation is clarified, schedule the Veteran for a Board video-conference hearing, as per his request, in accordance with the procedures set forth at 38 C.F.R. § 20.700(a), 20.704(a) (2012), and as the docket permits. Notice of the scheduled hearing should be sent to the Veteran and his currently designated representative/attorney. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).