Citation Nr: 1800988	
Decision Date: 01/08/18    Archive Date: 01/19/18

DOCKET NO.  12-14 205	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to service connection for left lower extremity sciatica as secondary to the service-connected disability of mild degenerative disc disease L4-L5.

2. Entitlement to a total disability evaluation based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

S. Delhauer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1971 to May 1973.

This matter comes before the Board of Veterans' Appeals (Board) on a motion to vacate an October 2017 decision by the Board, which denied the claims for entitlement to service connection for left lower extremity sciatica and for entitlement to a TDIU.  For the reasons discussed below, the Board's October 2017 decision is vacated.


ORDER TO VACATE

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017).    

In this case, pursuant to the November 2017 motion to vacate by the Veteran's representative, the Board finds the Veteran was denied due process of law with respect to his appeal of the issues of entitlement to service connection for left lower extremity sciatica and entitlement to a TDIU, as an error was made in the October 2017 Board decision denying the claims.  Specifically, prior to the issuance of the Board decision, on May 18, 2017 the Veteran's representative requested a copy of the Veteran's entire claims file.  When a Privacy Act request is filed under 38 C.F.R. § 1.577 by an individual seeking records pertaining to him or her and the relevant records are in the custody of the Board, such request will be reviewed and processed prior to appellate action on that individual's appeal.  38 C.F.R. § 20.1200.  The Veteran's representative did not receive the requested information prior to the Board's issuance of the October 17, 2017 decision.  Accordingly, the October 17, 2017 Board decision denying entitlement to service connection for left lower extremity sciatica and entitlement to a TDIU must be vacated to resolve this error of due process.

The Privacy Act request of the Veteran's representative was fulfilled by the Board on December 20, 2017.  In the November 2017 motion to vacate, the Veteran's representative requested the evidentiary record be held open for 90 days from the date the request was fulfilled.  The Board grants the request for a 90 day extension from the December 20, 2017 fulfillment of the Privacy Act request.

This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal.  38 C.F.R. § 20.1100(b).  Rather, following the completion of the 90 day extension granted herein, the Board will reconsider the claims as if the October 17, 2017 decision had never been issued.  

Accordingly, the October 17, 2017 Board decision addressing the issues of entitlement to service connection for left lower extremity sciatica and entitlement to a TDIU is vacated.




	                        ____________________________________________
	MICHAEL LANE
	Veterans Law Judge, Board of Veterans' Appeals