Citation Nr: 1631394	
Decision Date: 08/05/16    Archive Date: 08/12/16

DOCKET NO.  10-26 111	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an extraschedular rating for myofascial pain syndrome.


REPRESENTATION

Veteran represented by:	Yelena Duterte, Attorney


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel







INTRODUCTION

The Veteran served on active duty for training (ADT) from February 1982 to May 1982 with subsequent inactive duty service (IDT) in the Army Reserve.

This matter initially came before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  In October 2007, the RO initially denied the Veteran's claim for an increased rating for myofascial pain syndrome.

In February 2015, the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for so that it could be referred to the Director of Compensation and Pension for extraschedular consideration.  The Director issued an administrative opinion in December 2015.  As such, the matter was returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

In March 2016, the Board issued a decision in this case.  However, it was determined that, prior to the date of adjudication, the Veteran requested a hearing with a Veterans Law Judge (VLJ).  As such, the March 2016 Board decision will be vacated, and the Veteran's claim will be remanded so as to provide her the opportunity to present testimony before a VLJ.

The issue of entitlement to an extraschedular rating for myofascial pain syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran requested a hearing before a VLJ prior to the issuance of the March 2016 Board decision.



CONCLUSION OF LAW

The Board's March 2016 decision is vacated in its entirety.  38 U.S.C.A. 
 § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA regulations provide that an appellate decision by the Board may be vacated by the Board at any time upon the request of the Veteran or his representative, or on the Board's own motion when there has been a denial of due process.  38 C.F.R. 
§ 20.904(a) (2014).  Here, the Veteran's representative requested that the March 2016 Board decision be vacated, as the Veteran had requested a hearing before a VLJ prior to the promulgation of that decision.  The Veteran's request for vacatur is granted.


ORDER

The March 2016 Board decision is vacated.


REMAND

In this case, the Veteran requested a Board hearing as to the issue of entitlement to an extraschedular rating for myofascial pain syndrome.  As such, the claim will be remanded so as to schedule the requested Board hearing.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a Board in accordance with her request.

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.A. §§ 5109B, 7112 (West 2014).

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______________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs