Citation Nr: 1337392	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  05-05 881	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to a rating higher than 40 percent for lumbosacral strain.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. Edwards, Counsel


INTRODUCTION

The Veteran served on active duty from September 1986 to December 1991.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Regional Office in Manchester, New Hampshire.  The Veteran now resides in South Carolina, so the matter is handled by the RO in Columbia, South Carolina.

A hearing was conducted in February 2007 by Veterans Law Judge (VLJ) K.A. Banfield.  A transcript of this hearing has been associated with the claims folder.  An additional hearing was conducted in July 2013 by the undersigned and a transcript of this hearing has been associated with the claims folder.

The Board notes this appeal originally included entitlement to a total disability rating based on individual unemployability (TDIU); however, this issue was granted in a July 2012 rating decision, and as such, is no longer on appeal.

In May 2007 and October 2010, the Board remanded this claim for additional development.  Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

The Veteran seeks entitlement to a rating higher than 40 percent for her lumbosacral strain.

VA law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal.  38 U.S.C. § 7107(c); 38 C.F.R. § 20.707.  Additionally, when two hearings have been held by different VLJ's concerning the same issue or issues, the law also requires that the Board assign a third VLJ to decide that issue or issues because a proceeding before the Board must be assigned either to an individual VLJ "or to a panel of not less than three members of the Board."  38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. 

In Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011), the United States Court of Appeals for Veterans Claims (Court) held that under § 20.707, a claimant must be afforded an opportunity for a hearing before all the Board members who will ultimately decide his appeal.  Thus, if the claimant's appeal is assigned to a Board panel, that claimant must be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case.  Id.   

In this case, the Veteran presented testimony at two hearings before two different VLJ's concerning the issue of entitlement to an increased rating for her lumbosacral strain.  The first hearing was held in February 2007 and the second hearing was held in July 2013. 

Accordingly, pursuant to section 20.707 and the Court's holding in Arneson, a letter was sent to the Veteran offering her the opportunity to testify at a hearing before the third Judge who will participate in the panel decision.  The Veteran indicated in an October 2013 response to this letter that she wished to testify at a hearing by videoconference before a third VLJ.  Therefore, on remand, the Veteran should be scheduled for a videoconference hearing before the third VLJ who will participate in the panel decision. 

Accordingly, the case is REMANDED for the following actions:

1.  The RO should take appropriate steps to schedule the Veteran for a hearing at the RO via videoconference before a Veterans Law Judge at the earliest opportunity, pursuant to Arneson.

2.  After the hearing is conducted, or in the event the Veteran withdraws her request for hearing, or fails to appear at the scheduled hearing, the case should be returned to the Board.

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 Veteran 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).



_________________________________________________
WAYNE M. BRAEUER
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).