Citation Nr: 1648506	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  04-19 348	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for a low back disability.  

2.  Entitlement to service connection for a cervical spine disability.  


REPRESENTATION

Veteran represented by:	Matthew D. Hill, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. T. Brant, Associate Counsel
INTRODUCTION

The Veteran had active service in the United States Navy from January 1967 to January 1970.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a December 2003 rating decision by the Regional Office (RO) in White River Junction, Vermont.  Jurisdiction has been transferred to the New York, New York RO.  

The Board denied the instant claims of service connection in a decision promulgated in June 2007.  In a July 2008 Joint Motion for Partial Remand, the United States Court of Appeals for Veterans Claims (Court) vacated the part of the June 2007 decision which denied these two claims.  The Court then remanded these claims to the Board for additional development in accordance with the Joint Motion.  In April 2009, the claims were remanded by the Board.  The claims are now back before the Board.

In June 2004, the Veteran appeared at a Video Conference hearing before a Veterans Law Judge who has since retired.  The Veteran has indicated that he wants another hearing.

At the time of the April 2009 Board remand, the Veteran was represented by Jenny Y. Twyford, a private attorney.  However, prior to certification to the Board, the Veteran submitted a new VA Form 21-22a in December 2010, appointing Matthew D. Hill as his representative.  Because the request for a change in representation was received by the Board before certification of his appeal, the Board recognizes the change in representation.  38 C.F.R. § 20.1304.  

The Board notes that in February 2016, the Veteran perfected an appeal of the issue of entitlement to an effective date earlier than January 29, 2009, for the grant of service connection for posttraumatic stress disorder (PTSD).  The claims file contains a VA Form 8 indicating that this issue was certified to the Board in November 2016.  However, as the Veteran requested a Board Video Conference hearing on this issue, and the hearing request is still pending, the Board will not take jurisdiction over this issue at this time, but it will be the subject of a subsequent Board decision, if otherwise in order.

In accordance with the Veteran's request for another Video Conference hearing, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

As noted above, with respect to the issues of entitlement to service connection for a low back disability and a cervical spine disability, in June 2004, the Veteran testified at a Video Conference hearing before a Veterans Law Judge who has since retired.  In an October 2016 correspondence, the Veteran was informed that the Veterans Law Judge who held the hearing was no longer employed at the Board and that he had a right to another hearing.  In a December 2016 correspondence, the Veteran's representative responded that the Veteran wished to be scheduled for a Video Conference hearing. 

As the Veterans Law Judge who held the June 2004 hearing is no longer at the Board, the Veteran is entitled to another hearing.  See 38 U.S.C.A. §7107(c) (West 2014); 38 C.F.R. § 20.707 (2016).

Accordingly, the case is REMANDED for the following action:

The AOJ should take appropriate steps to schedule the Veteran for a Video Conference hearing for the issues of entitlement to service connection for a low back disability and a cervical spine disability in accordance with his request.  The Veteran and his representative should be notified in writing of the date, time, and location of the hearing.  After the hearing is conducted, the claims file should be returned to the Board in accordance with appellate procedures.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




_________________________________________________
S. HENEKS
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) (2016).



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