Citation Nr: 1332781 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 05-39 105A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an initial rating in excess of 60 percent for myasthenia gravis on an extra-schedular basis, prior to March 7, 2008. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. WITNESSES AT HEARINGS ON APPEAL The Veteran, his sister, and a friend ATTORNEY FOR THE BOARD R. Giannecchini, Counsel REMAND The Veteran had active military service from September 1965 to July 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted the Veteran's original claim for service connection for myasthenia gravis, with an initial 30 percent rating assigned, effective October 30, 1996, the date the claim was received. The Veteran contested the rating assigned, requesting a higher rating of 100 percent effective back to the date of his claim. In August 2008, the Veteran presented testimony during a hearing before a Veterans Law Judge (VLJ). In addition, the Veteran and several other witnesses testified at earlier hearings before RO personnel in November 1997 and February 2007. In a December 2008 decision, the Board granted a 60 percent disability rating for myasthenia gravis effective from the date of claim and a 100 percent disability rating effective March 7, 2008. The Board also referred a claim for a TDIU. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2011 memorandum decision, the Court vacated and remanded that part of the Board decision that denied an initial disability rating in excess of 60 percent for myasthenia gravis on an extra-schedular basis, prior to March 7, 2008; and which referred the claim for a TDIU. In December 2011, the Board remanded the claim for entitlement to an initial disability rating in excess of 60 percent for myasthenia gravis on an extra-schedular basis, prior to March 7, 2008. It also remanded the claim for a TDIU. In November 2012, the Director of VA's C&P Service considered and denied the Veteran's claim for a higher rating for myasthenia gravis on an extra-schedular basis prior to March 7, 2008. In a February 8, 2013 supplemental statement of the case (SSOC), the RO continued the denial of the Veteran's claims. Thereafter, in March 2013, the RO received a statement from the Veteran in which the following was noted: This is to inform you that I DISAGREE with the Decision from 2/08/13 and intend to file an appeal. That appeal will include NEW evidence. I do NOT want a BVA hearing. I do NOT want to appeal ALL the issues listed on the Statement of the Case. I DO want to appeal the decision regarding TDIU. Given the conflicting statements regarding what the Veteran desires to appeal, the Board does not construe this statement as a clear withdrawal of the issue of entitlement to an initial disability rating in excess of 60 percent for myasthenia gravis on an extra-schedular basis, prior to March 7, 2008. The Veteran is free to clarify his intention. He may do so in writing or at the Board hearing that will be scheduled pursuant to this remand. As noted above, in August 2008, the Veteran presented testimony during a hearing before a VLJ. That VLJ is no longer employed at the Board. In August 2013, the Board notified the Veteran of this fact and offered him an opportunity to testify at another Board hearing. In September 2013, the Board received notification from the Veteran that he desired a hearing before a member of the Board sitting at the RO. In view of the pending hearing request in this matter, the Board must remand the case to ensure that the Veteran is afforded due process of law. See 38 U.S.C.A. § 7104 (West 2002). (The Board also notes that at the time of the December 2011 Board remand, the Veteran was represented by an attorney. He later revoked that representation in favor of another attorney. He has since also revoked that appointment. In a statement received in August 2013, the Veteran noted that he was not represented by an attorney but that he may appoint representation at a future date.) Accordingly, this case is REMANDED for the following action: Schedule the Veteran for a hearing before a member of the Board sitting at the RO. The Veteran should be notified in writing (at his latest address of record) of the date, time, and location of the hearing. The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).