Citation Nr: 1512285 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 97-27 160A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an extraschedular evaluation for service-connected low back strain with degenerative changes, currently evaluated as 40 percent disabling. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). (The matter of entitlement to a compensable initial evaluation for gastroesophageal reflux disease, claimed as abdominal pain and flatulence, will be the subject of a separately issued Board decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to August 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction of the Veteran's claims folder rests with the RO in Chicago, Illinois. In pertinent part, the October 1996 rating decision granted service connection for low back strain, and assigned a noncompensable evaluation, effective from September 17, 1996. In a September 1998 rating decision, the RO granted an increased 10 percent evaluation for low back strain with degenerative changes, effective September 17, 1996. In an October 2001 rating decision, the RO granted an increased 20 percent evaluation for low back strain with degenerative changes, effective from September 17, 1996. The Veteran provided testimony at a video conference hearing in February 2003 before S. L. Kennedy, one of the undersigned Veterans Law Judges. The Veteran's testimony addressed the issue of entitlement to an increased rating for low back strain with degenerative changes. A transcript of that hearing has been associated with the claims file. Thereafter, the Board issued a decision in June 2003 which, in pertinent part, granted a schedular increase from 20 percent to 40 percent for the Veteran's service-connected low back disability, and denied an extraschedular disability rating pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The June 2003 Board decision also referred the issue of entitlement to a TDIU to the RO for appropriate action. A June 2003 rating decision which implemented the Board decision assigned the 40 percent evaluation for the low back disability, effective from September 17, 1996. The Veteran appealed the Board's June 2003 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2007 memorandum decision, the Court, in pertinent part, affirmed the denial of entitlement to a schedular evaluation in excess of 40 percent for the low back disability, and remanded that part of the Board's June 2003 decision which denied referral of the increased rating issue for extraschedular consideration. In light of the January 2007 Court memorandum and decision and the instructions set forth therein, the Board, in pertinent part, remanded the issue of entitlement to an extraschedular evaluation for the service-connected low back disability to the RO for further development in May 2008, March 2010, and January 2011. In May 2010, the Veteran testified at a video hearing before U. R. Powell, one of the undersigned Veterans Law Judges. In pertinent part, the Veteran's testimony addressed the issues of entitlement to an extraschedular rating for the service-connected low back disability and entitlement to a TDIU. A transcript of that hearing has been associated with he claims file. In its January 2011 decision, the Board found that there was plausible competent evidence in the record that the Veteran's service-connected low back disability was productive of marked interference with employment, not contemplated in the current schedular evaluation, and remanded the claim for referral to the VA Director, Compensation and Pension Service, for consideration of an extraschedular rating. The January 2011 Board decision also found that the issue of entitlement to a TDIU was part of the increased rating claim, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the issue for adjudication by the RO. In a June 2011 memorandum decision, the VA Director, Compensation and Pension Service, denied entitlement to an evaluation in excess of 40 percent for the service-connected low back strain with degenerative changes on an extraschedular basis under 38 C.F.R. § 3.321(b), and denied entitlement to a TDIU under 38 C.F.R. § 4.16(b). In October 2013, in a panel decision, the Board remanded the Veteran's claims addressed herein for additional development. The claims are now returned to the Board for consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In October 2013, the Board remanded the Veteran's claims of entitlement to an extraschedular evaluation for low back strain with degenerative changes, currently evaluated as 40 percent disabling, and entitlement to a TDIU for additional development, which included notifying the Veteran of his right in this case to present testimony before the third member of the panel of Veterans Law Judges who would decide his case. As noted above, the Veteran presented testimony regarding the severity of his service-connected low back disability before two different Veterans Law Judges, one in February 2003, and one in May 2010. The law requires that a Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. If two hearings are held before different Veterans Law Judges on the same issues, then the matters must be decided by a three-member panel of Veterans Law Judges. 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2014). The Court has held that a veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2012). As the Veteran presented testimony before two different Veterans Law Judges in this case, requiring that his claims be decided by a three-member panel of Veterans Law Judges, he is entitled to appear for another hearing with a Veterans Law Judge who will be the third member of the panel to ultimately decide his appeal. Id. In April 2014, the RO notified the Veteran that he was entitled to present testimony regarding the above-noted issues before a third Veterans Law Judge who would participate in the Board's three-panel judge decision and requested that he identify the type of hearing that he would like, if he wished to appear at such a hearing. In April 2014, the Veteran responded that he would like to appear at a videoconference hearing at his local RO. Thereafter, the Veteran was scheduled for a videoconference hearing before the Board in July 2014. The Veteran appeared for his hearing in July 2014 before the Board; however, review of the transcript of the July 2014 hearing reflects that the Veteran was not asked about his service-connected low back disability or his employability and did not present testimony with regard to those issues. The Board identified the issue before it solely as entitlement to a compensable initial evaluation for service-connected gastroesophageal reflux disease. The issues of entitlement to an extraschedular rating greater than 40 percent for a service-connected low back disability and entitlement to a TDIU were not noted by the Board; nor were they addressed by the Veteran or his representative. Because the Veteran requested that he be permitted an opportunity to testify before the third member of the panel of Veterans Law Judges which will decide his claims of entitlement to an extraschedular rating greater than 40 percent for a service-connected low back disability and entitlement to a TDIU, and because the Veteran was not provided that opportunity during the July 2014 Board hearing, the Veteran's claims must again be remanded to provide him with a hearing before a Veterans Law Judge who will participate as the third member of the panel deciding his claims herein. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a video conference hearing before a Veterans Law Judge to be held at the RO with regard to his claims for entitlement to an extraschedular rating greater than 40 percent for a service-connected low back disability and entitlement to a TDIU. Notify the Veteran of the date, time and location of this hearing. The appellant 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 2014). __________________________ _________________________ S. L. KENNEDY DENNIS F. CHIAPPETTA Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).