Citation Nr: 1634820 Decision Date: 09/06/16 Archive Date: 09/09/16 DOCKET NO. 10-22 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2009, the Board remanded this matter to the RO via the Appeals Management Center (AMC) for additional development. In January 2012, the Board again remanded this matter to the RO via the AMC for additional development. In a March 2012 rating decision, the RO re-characterized the Veteran's service-connected lumbosacral strain as degenerative arthritis of the spine and assigned a 20 percent rating, effective September 30, 2004 (the date of his increased rating claim). The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved that claim. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the Board denied entitlement to a rating in excess of 20 percent for the Veteran's degenerative arthritis of the spine in May 2012. However, pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's May 2012 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the Veterans Law Judge (VLJ) that conducted the August 2011 hearing. In order to remedy any such potential error, the Board sent the Veteran a September 2013 letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, the Veteran requested only to have the prior decision vacated and a new one issued in its place. Accordingly, the Board vacated its May 2012 decision in an April 2014 decision. The Board then remanded the appeal for additional development also in April 2014. Following additional development directed by the Board remand, the Agency of Original Jurisdiction (AOJ) issued a Supplemental Statement of the Case to the Veteran in November 2014. However, in a November 2014 VA Form 9, the Veteran referenced his back issue and requested another hearing, and checking both the Travel Board and videoconference hearing options on his appeal form. Prior to the Veteran's latest hearing request, the Veteran previously testified in an August 2011 hearing before a Veteran Law Judge (VLJ) that is no longer employed by the Board. A transcript of that hearing has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In July 2016 the Veteran was issued a hearing clarification letter which notified him that the VLJ who had conducted his August 2011 hearing was no longer employed by the Board and pursuant to 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707 (2015), inquired as to whether he would like to be scheduled for another hearing before a different VLJ. The Veteran replied to this hearing clarification letter in August 2016 requesting another Board hearing through video teleconference. As such, this claim is remanded for additional development as described above. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a Board video conference hearing at the earliest available opportunity. The RO should notify the Veteran at his correct address and his representative, if any, of the date and time of the hearing, in accordance with 38 C.F.R. § 20.704(b) (2015). After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures. 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 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 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).