Citation Nr: 21067145
Decision Date: 11/03/21	Archive Date: 11/03/21

DOCKET NO. 18-53 100A
DATE: November 3, 2021

REMANDED

A rating in excess of 10 percent for the service-connected left knee degenerative joint disease based on limitation of motion is remanded.

A rating in excess of 10 percent for the service-connected right knee patellofemoral pain syndrome with spurring and status post chondroplasty based on limitation of motion is remanded.

An initial rating in excess of 10 percent for recurrent subluxation of the right knee is remanded.

A rating in excess of 20 percent for the service-connected postoperative cervical fusion with Brown-Sequard syndrome prior to July 6, 2018, and in excess of 30percent on and thereafter is remanded.

A rating in excess of 10 percent for the service-connected degenerative joint disease of the lumbosacral spine prior to March 10, 2016, and in excess of 20percent on and thereafter is remanded.

 

REASONS FOR REMAND

The Veteran served on active duty from October 1980 to January 2000.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  This case was previously remanded for development by the Board in August 2019 and it now returns for further appellate review.

Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed so that the Veteran is afforded every possible consideration.  See; 38 C.F.R. § 3.159.

The 2019 Board remand instructed the RO to offer the Florida Department of Veterans Affairs (FLDVS) the opportunity to offer argument on the Veteran's behalf.  Consequently, such organization was to be afforded an opportunity to submit a 

VA Form 646 (Statement of Accredited Representative in Appealed Case) on his behalf.

Upon remand, there is no evidence in the record that FLDVS was provided with the opportunity to complete a VA Form 646, or a statement in lieu thereof, in support of the issue on appeal.

Therefore, in order to preserve the Veteran's due process rights, as he is entitled to representation at all stages of an appeal, and VA policy is to afford a representative the opportunity to submit a VA Form 646 after completion of the development at the AOJ and prior to certification of the appeal to the Board, FLDVS must be given the opportunity to submit such on the Veteran's behalf.  See 38 C.F.R. § 20.5 (2020); Stegall v. West, 11 Vet. App. 268, 271 (1998).

 

These matters are REMANDED for the following action:

Provide the Veteran's accredited representative, the Florida Department of Veterans Affairs, an opportunity to complete a VA Form 646, or a statement in lieu thereof.  If the representative cannot be contacted, the Veteran shall be informed to ensure that his due process rights are protected.  The attempts should be documented and associated with the claims file. 

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Cruz, K.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.