Citation Nr: 1808958	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  10-32 677	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to increased evaluation in excess of 10 percent for service-connected left lateral ankle instability, post-operative, prior to February 7, 2012. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S.Wainaina, Associate Counsel


INTRODUCTION


The Veteran served on active duty from January 1967 to February 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

A hearing before the undersigned Veterans Law Judge was held via videoconference in July 2013.  A transcript of the hearing has been obtained and associated with the claims file.

This appeal was processed using the Legacy Content Manager (Virtual VA) and Veterans Benefits Management System paperless claims processing systems.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records.

In the August 2016 Board decision, the Board, in pertinent part, denied the claim for entitlement to an increased evaluation in excess of 10 percent for service connected left ankle instability, post-operative, prior to February 17, 2012.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  Subsequently in an April 2017 Order, the Court granted a joint motion for partial remand filed by the parties.  The Court vacated and remanded the Board's denial of a rating in excess of 10 percent prior to February 17, 2012, for the Board to explain how it determined that the Veteran did not experience any additional functional impairment due to pain at the September 2010 VA examination of the ankle.  (The Veteran abandoned his claim before the Court for a rating in excess of 20 percent from February 17, 2012.)

The appeal is REMANDED to the agency of original jurisdiction (AOJ).  VA will notify the appellant if further action is required on his part.


REMAND

In December 2017, the Veteran appointed Texas Veterans Commission as his representative before VA.  (His previous attempt to appoint Disabled American Veterans in 2010 was inadequate, as he did not sign the designation of appointment form.)  Texas Veterans Commission has not been afforded an opportunity to present argument in support of the Veteran's appeal.  As this represents a denial of due process, this matter must be remanded to the AOJ so that Texas Veterans Commission may be afforded such an opportunity to participate in the adjudication of the Veteran's claim.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran's appointed representative, Texas Veterans Commission, should be afforded the opportunity to participate in the Veteran's appeal, through the submission of additional written argument and/or evidence.

2.  Following completion of the above, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence considered since the issuance of the last SSOC.  An appropriate period of time should be allowed for response before the case is returned to the Board for further appellate review, if in order.  

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. §§ 5109B, 7112 (2012).



_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).