Citation Nr: 1333203	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  10-08 423	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for right ankle pain, to include as secondary to service-connected bilateral knee traumatic arthritis.

2.  Entitlement to a rating in excess of 10 percent for left knee traumatic arthritis.

3.  Entitlement to a rating in excess of 10 percent for right knee traumatic arthritis prior to November 5, 2010 and on and after January 1, 2011.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel
INTRODUCTION

The Veteran (appellant) served on active duty from August 1983 to November 1998.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision, which, in relevant part, denied service connection for right ankle pain and from an October 2010 rating decision which continued 10 percent ratings for bilateral knee traumatic arthritis.  Although these rating decisions were issued by the RO in Roanoke, Virginia, the Veteran has relocated and his claim is now being addressed by the RO in Huntington, West Virginia.  

During the pendency of the appeal, a temporary total evaluation from November 5, 2010 to December 31, 2010, with a 10 percent rating resumed on January 1, 2011, was granted for the Veteran's right knee traumatic arthritis based on the need for surgical convalescence by an April 2013 rating decision.  The temporary total rating represents a maximum award between November 5 and December 31, 2010.  The periods prior to November 5, 2010, and on and after January 1, 2011, remain on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (Where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal).

The Veteran also appealed the issue of service connection for low back pain.  The RO granted service connection for degenerative disc disease and degenerative joint disease in the April 2013 rating decision.  The grant of service connection constitutes a complete grant of the benefit sought on appeal.  The Veteran has not disagreed with disability rating or effective date assigned.  Therefore, the issue has been resolved and is not in appellate status.  Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


REMAND

The Veteran requested a personal hearing before a Member of the Board at the VA Central Office in Washington, D.C., in his Form 9 received in January 2012.  In September 2013, he sent a letter requesting that he be scheduled for a videoconference hearing before a Member of the Board instead.  As the Veteran requested a change in venue prior to the scheduling of the hearing, and has not been provided a hearing in accordance with his request, it is appropriate to remand this case for due process reasons.  

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a hearing before a Veterans Law Judge via videoconference, and notify him of the scheduled hearing at the latest address of record.  

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 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. 2013).



_________________________________________________
K.J. ALIBRANDO
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) (2013).