Citation Nr: 18143040
Decision Date: 10/17/18	Archive Date: 10/17/18

DOCKET NO. 13-05 368
DATE:	October 17, 2018
ORDER
The Board’s August 9, 2016, grant of the claim of entitlement to service connection for tinnitus is vacated.
The Board’s August 9, 2016, denial of the claim of entitlement to service connection for a heart disability is vacated. 
The Board’s August 9, 2016, denial of the claim of entitlement to service connection for sinusitis is vacated.
The Board’s August 9, 2016, denial of the claim of entitlement to service connection for a left-hand disability is vacated. 
The Board’s August 9, 2016, denial of the claim of entitlement to service connection for a right-hand disability is vacated. 
The Board’s August 9, 2016, denial of the claim of entitlement to service connection for temporomandibular joint dysfunction (TMJ) is vacated.
The Board’s August 9, 2016, remand of the claim for an increased initial rating for migraines, currently rated as 30 percent disabling, is vacated. 
The Board’s August 9, 2016, remand of the claim for an increased initial rating for a traumatic brain injury (TBI), rated as 10 percent disabling from November 20, 2009, to May 6, 2017, is vacated. 
The Board’s August 9, 2016, remand of the claim for an increased initial rating for an anxiety disorder, rated as 10 percent disabling from November 20, 2009, to May 6, 2017, is vacated.
The Board’s August 9, 2016, remand of the claim a total disability rating for individual unemployability due to service-connected disability (TDIU) is vacated.
(While the appeal was in remand status, the agency of original jurisdiction (AOJ) in a February 2018 rating decision recharacterized the Veteran’s separate TBI and anxiety disabilities as a single disability [TBI with anxiety] and awarded the appellant a single 50 percent rating from May 6, 2017, as well as granted him a TDIU from May 6, 2017.  The above issues as well as the claims for a rating in excess of 50 percent for TBI with anxiety from May 6, 2017, and entitlement to a TDIU before May 6, 2017, will be addressed in a separate decision.)
FINDINGS OF FACT
1. On March 21, 2016, a Veterans’ Law Judge (VLJ) held a hearing as to all the issues addressed in the subsequent August 9, 2016, Board of Veterans’ Appeal (Board) decision and remand.
2. The VLJ that conducted the March 21, 2016, hearing did not participate in the adjudicated appeal in the August 9, 2016, Board decision and remand.
CONCLUSION OF LAW
The criteria to vacate the Board’s August 9, 2016, decision and remand have been met.  38 U.S.C. §§ 7102(a), 7104(a); 38 C.F.R. §§ 20.707, 20.904.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty with the United States Army from January 1982 to July 1982.  The Veteran also had service with a Reserve Component.
On March 21, 2016, a VLJ held a hearing and a transcript of that hearing has been associated with the claims file.
The Vacatur
On March 21, 2016, a VLJ held a hearing as to all the issues addressed in the subsequent August 9, 2016, Board decision and remand.  
The VLJ that conducted the March 21, 2016, hearing did not participate in adjudicated the appeal in the August 9, 2016, Board decision and remand.
In this regard, controlling laws and regulations provide that the VLJ that conducts a personal hearing must participate in making the final determination of the appellant’s claims.  See 38 U.S.C. § 7102(a); 38 C.F.R. § 20.707.  They also provide that 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); 38 C.F.R. § 20.904.
With the above criteria in mind, the Board finds that Veteran was denied due process of law when the VLJ that held her March 21, 2016, personal hearing did not participate in making the August 9, 2016, decision and remand.  Accordingly, the Board must vacate its August 9, 2016, decision and remand.  Id.  
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The Board apologies for the delay in the full adjudication of this case.
 
JOHN J CROWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Neil T. Werner, Counsel