Citation Nr: 18158476
Decision Date: 12/18/18	Archive Date: 12/17/18

DOCKET NO. 14-11 950
DATE:	December 18, 2018
ORDER
Vacatur of the June 4, 2018 Decision of the Board of Veterans' Appeals is granted.
FINDING OF FACT
In June 2018 the Board issued a decision denying an increased rating for paraspinal lumbar spasms. At the time of that decision there was an outstanding FOIA request and an outstanding request for extension.
CONCLUSION OF LAW
The criteria for vacatur of the June 4, 2018 Decision of the Board of Veterans' Appeals have been met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904.
 

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 1988 to August 2002.
1. Vacatur
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.
In June 2018, the Veteran’s attorney filed motion to vacate the Board’s June 4, 2018 decision that denied an increased rating for paraspinal lumbar spasms on the basis that there was an outstanding Freedom of Information Act (FOIA) request. The attorney noted that an April 2018 FOIA request in which the Veteran’s representative requested an updated copy of his claims file had not been fulfilled at the time the Board issued the June 4, 2018 decision. Further, the Veteran had submitted a request for an extension which was not addressed by the Board. As a result, the Veteran was denied due process of law. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. Based on this procedural error, the Board will vacate its June 4, 2018 decision. 
 

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. See 38 C.F.R. §§ 20.904 (a)(3), 20.100(b).

 
H. N. SCHWARTZ
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Creegan, Associate Counsel