Citation Nr: 1603247 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 94-35 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for degenerative arthritis of the right knee, claimed as secondary to service-connected left Achilles tendinitis disability. 2. Entitlement to service connection for left knee pain, claimed as secondary to service-connected left Achilles tendinitis. 3. Entitlement to a rating in excess of 10 percent for service-connected left Achilles tendinitis with spur and talonavicular arthritis. REPRESENTATION Appellant represented by: Douglas Sullivan, Attorney ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 1993 (issued in November 1993) and October 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In the October 1993 rating decision, the RO assigned a noncompensable rating for left Achilles tendonitis from October 7, 1992. In the October 2010 rating decision, the RO denied service connection for degenerative arthritis of the right knee and left knee pain as secondary to service-connected left Achilles tendinitis. The increased rating claim on appeal has a long history but the Board will summarize the pertinent procedural history as follows. In June 1994, the Veteran testified during a personal hearing at the RO; a transcript of the hearing is of record. In a May 2003 rating decision, the RO awarded a 10 percent evaluation for the Veteran's left ankle disability, effective from July 13 1994. In March 2011, the Board denied entitlement to an initial, compensable rating from October 7, 1992 to July 12, 1994, as well entitlement to a rating in excess of 10 percent from October 7, 1992. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), after which the Court issued a July 2012 Memorandum Decision that affirmed the Board's denial of an initial, compensable rating, but vacated the decision denying a rating in excess of 10 percent from October 7, 1992. In May 2013, the Board denied rating in excess of 10 percent from July 13, 1994 to March 19, 2010, but remanded the issue of entitlement to a rating in excess of 10 percent from March 20, 2010, for additional development. The Board also remanded the bilateral knee service connection claims for issuance of a statement of the case, in accordance with Manlincon v. West, 12 Vet. App. 238, 240 (1999). All requested development has been completed with respect to the increased rating claim and the Veteran has perfected his appeal as to the denial of his bilateral knee claims. See July 2014 VA Form 9. Accordingly, the claims have been returned to the Board for adjudication. For reasons discussed below, 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 record reveals there is an outstanding hearing request in this case. In July 2014, the Veteran perfected an appeal as to the denial of his right and left knee service connection claims by submitting a timely substantive appeal following the issuance of the May 2014 statement of the case. Review of the July 2014 VA Form 9 reflects that the Veteran requested a Board hearing via live video conference in conjunction with the bilateral knee issues. Thereafter, in a December 2014 statement, the Veteran's attorney-representative reiterated the Veteran's request for a Board video conference hearing. To date, a Board hearing has not been scheduled. The Board notes that the increased rating issue on appeal was perfected by way of a VA Form 9 submitted by the Veteran in February 1994. While the Veteran did not request a Board hearing at that time, he provided testimony regarding his left ankle disability during a personal hearing at the RO in June 1994. Nevertheless, the Veteran has obtained a new attorney-representative since that time and review of the record shows his current attorney-representative has requested the Veteran be afforded a Board hearing in conjunction with his increased rating claim. See March 2009 Motion to Vacate previous Board decision. While the March 2009 Motion to Vacate was denied and the Board has issued decisions addressing the Veteran's increased rating claim since that time, review of the record reveals the Veteran has not been afforded an opportunity to provide testimony in support of his increased rating claim with the assistance of his new attorney-representative, as previously requested. In this context, the Board notes that the Court has vacated the December 2008 Board decision because it was issued without affording the Veteran's current attorney-representative the opportunity to submit additional evidence in support of the increased rating claim after he was designated as the Veteran's representative. See February 2010 Joint Motion for Remand and Court order. Considerations of due process mandate that the Board may not proceed with review of the claim on appeal without affording the Veteran an opportunity for the requested hearing. Therefore, a remand is required in order to afford the Veteran a video conference hearing as to all issues remaining on appeal, as requested. See 38 U.S.C.A. § 7107(b) (West 2014); 38 C.F.R. § 20.700(a) (2015). Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a video conference hearing before a Veterans Law Judge, as per the Veteran's request, in accordance with the procedures set forth at 38 C.F.R. § 20.700(a), 20.704(a) (2015), and as the docket permits. Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise informed, but he 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 2014). _________________________________________________ MARJORIE A. AUER 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) (2015).