Citation Nr: 1341985	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  10-22 714	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity.  

2.  Entitlement to service connection for sleep apnea, to include as secondary to herniated lumbar discs, status post discectomies and lumbar interbody fusion at L4-5 and L4-S1.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel


INTRODUCTION

The Veteran had active service from August 1991 to August 1995.
 
The issue of entitlement to an increased rating for radiculopathy of the left lower extremity comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The issue of entitlement to service connection for sleep apnea comes before the Board on appeal from a March 2010 rating decision by RO.  

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 claims.  Review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran if further action is required.


REMAND

In his May 2010 substantive appeal for his left lower extremity claim, the Veteran requested a Board video-conference hearing.  However, it appears that, in October 2010, he withdrew his hearing request.  Nevertheless, in his June 2013 substantive appeal for his sleep apnea claim, the Veteran requested a Board hearing before a Veterans Law Judge sitting at the local RO.  In a November 2013 Motion to Remand, the Veteran's representative requested that both of these issues be remanded to afford the Veteran his requested Board hearing.  As such, in accordance with 38 C.F.R. § 20.700 (2013), 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) (pertaining specifically to hearings before the Board).  Under the circumstances, this case must be returned to the RO so that the Veteran is afforded an opportunity to present testimony at a Board hearing before a Veterans Law Judge sitting at the RO.

Accordingly, this matter is hereby REMANDED for the following action:

Schedule the Veteran for a Board hearing before a Veterans Law Judge sitting at the RO.  Send notice to the Veteran and his representative of the date, time and place of the hearing.  Once the hearing is conducted, or in the event the Veteran cancels his hearing request or otherwise fails to report, the claims file should be returned to the Board in accordance with current appellate procedures. 

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).

These claims must be afforded expeditious treatment.  The law requires that all claims that are 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).



_________________________________________________
A. JAEGER
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).