Citation Nr: 18158157 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 10-26 127 DATE: December 14, 2018 ORDER The decision of the Board of Veterans' Appeals (Board) of October 1, 2018 is vacated. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran was denied due process of law when a supplemental statement of the case (SSOC) was not issued after the April 2018 denial of his TDIU claim pursuant to 38 C.F.R. § 19.31 (2017). CONCLUSION OF LAW The criteria for a motion of vacatur of the Board decision of October 1, 2018 have been met. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). MOTION TO VACATE In an October 1, 2018 decision, the Board denied entitlement to a TDIU. The Veteran, through his representative, has moved the Board to vacate that decision on the grounds that the Board lacked jurisdiction to rule on that TDIU appeal because the VA Regional Office (RO) had not issued a rating decision adjudicating that TDIU issue. The Board of Veterans’ Appeals (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). Depending on the facts of the case, denial of due process may include a procedural defect. See 38 C.F.R. §§ 20.200, 20.202; Percy v. Shinseki, 23 Vet. App. 37, 45-47 (2009). The Veteran’s original claims pertinent to this motion for service connection for an acquired psychiatric disorder and TDIU were denied by the RO in May 2007 and March 2009, respectively. In a February 2014 decision, the Board denied an appeal of the claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). In a May 2015 Memorandum Decision, the Court vacated and remanded the Board’s decision with respect to a claim for entitlement to service connection for an acquired psychiatric disorder and TDIU. The case was remanded by the Board in October 2015, May 2017, and October 2017 for further development. The Board remanded again in February 2018, to include the specific instruction that “if the determination remained unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case.” See February 15, 2018 Board remand. On April 23, 2018, the RO issued a rating decision granting entitlement to service connection for an unspecified depressive disorder; that particular rating decision itself did not consider the TDIU claim. On the same day, April 23, 2018, the RO also issued a statement of the case (SOC), (and not a supplemental statement of the case,) which denied the TDIU. The TDIU issue, having been denied in that SOC, was returned to the Board, which denied that appeal in a decision dated October 1, 2018. Here, the Veteran, through his representative, has moved that the Board’s decision dated October 1, 2018 that denied an appeal for a TDIU claim should be vacated because the RO had not yet adjudicated it. The representative continued in her letter of October 15, 2018 that the RO had not previously adjudicated the TDIU, and therefore contended the Board did not have jurisdiction to address the TDIU. The remedy sought by the Veteran through his representative was the vacatur of the Board’s October 1, 2018 decision that denied the TDIU and that the issue be returned to the RO for adjudication. The issuance of a SOC was incorrect at that juncture of the procedural development, and a supplemental statement of the case (SSOC) should have been issued. The Board acknowledges the procedural flaw that an SSOC was not issued as directed in the Board’s February 2018 remand and pursuant to 38 C.F.R. § 19.31. As such, the Board finds that the Veteran was denied proper due process of law. See 38 U.S.C. § 7105, 38 C.F.R. § 19.29, Statement of the Case; cf. 38 C.F.R. § 19.31, Supplemental Statement of the Case. Accordingly, the motion to vacate is granted and the October 1, 2018 Board decision addressing the issue of TDIU is therefore vacated. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). (CONTINUED ON NEXT PAGE) REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran’s original claim for TDIU was denied in a March 2009 rating decision by the RO. The TDIU issue remained on appeal through successive Board and CAVC remands as noted above, and was substantively denied in the April 23, 2018 SOC. The Board notes that while the SOC provided by the RO on April 23, 2018 was the incorrect procedural posture, as discussed above, the fact of the matter is that the RO did adjudicate and issue a decision regarding the TDIU. This diversion from the proper procedural steps, however, could potentially have misled the Veteran, as the appellant, into thinking something additional had to be done with respect to his appeal of the TDIU issue. In an effort to provide the appellant the opportunity with proper due process to advance his case, the Board will remand to the RO for an additional review of the TDIU claim and the issuance of a supplemental statement of the case (SSOC). 38 U.S.C. § 7105; 38 C.F.R. §§ 19.9, 19.31. The matter is REMANDED for the following action: 1. Conduct an additional review of the Veteran’s TDIU claim. 2. If the claime of entitlement to a TDIU remains denied, issue a supplemental statement of the case (SSOC) and afford the Veteran and his attorney the requisite period of time to respond before returning the appeal to the Board. (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel