06-36 966
06-36 966
| Board of Vet. App. | Apr 28, 2017Background
- Veteran served on active duty from September 1977 to January 1983 and seeks service connection for a psychiatric disorder.
- Appeal stems from a November 2005 VA Regional Office rating decision and subsequent Board denials; Board issued a May 2013 denial and the case was remanded by the U.S. Court of Appeals for Veterans Claims in February 2014.
- Multiple Board remands followed (July 2014; February 2015; July 2015; May 2016) for additional development.
- Veteran testified at a February 2009 hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board; transcript is of record.
- In February 2017 the Veteran requested a new Board hearing before a VLJ who will participate in the decision.
- The Board remanded the claim to schedule the requested hearing and to allow the Veteran to submit additional evidence/argument; the remand is a preliminary order, not a final merits decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veteran is entitled to service connection for a psychiatric disability | Veteran seeks service connection and requested a Board hearing before a VLJ who will decide the case | VA/Board: case requires further development and a new hearing should be provided before decision | Board remanded to schedule the requested hearing and permit further development; no merits decision made |
| Whether prior hearing sufficed when original VLJ is no longer employed | Veteran argues prior February 2009 hearing should stand | Board/VA asserts policy requires offer of a new hearing before a VLJ who will decide the case | Board offered and scheduled a new hearing per 38 C.F.R. § 20.707 and remanded |
| Whether the Veteran may submit additional evidence while on remand | Veteran asserts right to submit evidence and argument on remand | VA acknowledges obligation to allow submission and further development | Board reiterated Veteran’s right to submit additional evidence per Kutscherousky v. West and remanded |
| Whether remand order is appealable as a final Board decision | Veteran may seek review of Board actions | VA/Board: remand is preliminary and not a final decision appealable to Court of Appeals for Veterans Claims | Board clarified remand is not a final, appealable decision under 38 U.S.C. § 7252 and 38 C.F.R. § 20.1100(b) |
Key Cases Cited
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (Veteran’s right to submit additional evidence and argument while a claim is on remand)