Citation Nr: 1516957	
Decision Date: 04/21/15    Archive Date: 04/24/15

DOCKET NO.  09-23 227A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an increased rating for lumbosacral strain with fracture of L1 and T12 and scars, residuals of a back injury, rated as 20 percent disabling prior to December 18, 2009, and as 40 percent disabling as of that date.  


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel



INTRODUCTION

The Veteran served on active duty from November 1968 to November 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which continued the 20 percent rating assigned for lumbosacral strain with fracture of L1 and T12 and scars, residuals of a back injury.  

The rating assigned for lumbosacral strain with fracture of L1 and T12 and scars, residuals of a back injury, was increased to 40 percent, effective December 18, 2009.  See January 2010 rating decision.  Despite the increased rating granted by the RO, the Veteran's appeal remains before the Board.  Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). 

The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS).  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Review of the Veteran's claim at this time would be premature.  The Veteran was scheduled to attend a personal hearing before the Board in May 2014, but failed to report.  In a May 2014 VA Form 21-4138, the Veteran requested that the hearing be rescheduled because he did not receive notice until it was too late to cancel, or reschedule, or attend, and his representative did not receive notice until well after the hearing date.  Given the foregoing, and to ensure full compliance with due process requirements, a remand is required to reschedule the Veteran for a Board hearing.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a Board hearing at the Philadelphia, Pennsylvania, RO before a Veterans Law Judge, in accordance with applicable law.  A copy of the notice scheduling the hearing should be placed in the claims folder.

The appellant has the right to submit additional evidence and argument on the matter 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 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).



_________________________________________________
KATHLEEN K. GALLAGHER 
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).