Citation Nr: 1807065	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  09-15 192A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an increased rating for degenerative arthritis of the lumbosacral spine, evaluated as 10 percent disabling prior to March 4, 2015, and 40 percent disabling thereafter.


REPRESENTATION

Appellant represented by:	Deanne L. Bonner Simpson, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


INTRODUCTION

The Veteran served on active duty from August 1983 to January 2005.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Montgomery, Alabama, Regional Office (RO) of the United States Department of Veterans Affairs (VA).  The June 2008 rating decision denied the Veteran's claim for an increased rating for degenerative arthritis of the lumbar spine.  The Veteran filed a Notice of Disagreement (NOD) in July 2008, and the RO issued a Statement of the Case (SOC) in April 2009.  The Veteran filed a timely VA 9, Substantive Appeal in May 2009.  He filed an additional Substantive Appeal in June 2009.  The RO issued a Supplemental SOC in February 2015.  

The RO issued another Supplemental SOC in April 2015.  

The Veteran testified at a Board hearing before the undersigned in October 2015 and a copy of the hearing transcript has been associated with the claims file. 

In December 2015, the Board remanded the claim.  A Supplemental SOC was issued in March 2016.  The Board remanded the claim again in October 2016, a Supplemental SOC was issued in May 2017, and the appeal was returned to the Board for adjudication.

In a July 11, 2017 decision, the Board denied an increased rating for degenerative arthritis of the lumbosacral spine, evaluated as 10 percent disabling prior to March 4, 2015, and 40 percent disabling thereafter.  The Board remanded the issue of entitlement to a separate compensable rating for radiculopathy of the left leg, which remains at the RO awaiting the development ordered by the Board.  


FINDINGS OF FACT

1.  On July 11, 2017, the Board denied an increased rating for degenerative arthritis of the lumbosacral spine, evaluated as 10 percent disabling prior to March 4, 2015, and 40 percent disabling thereafter.
2.  The July 11, 2017 Board decision was issued prior to responding to a request for the Board to hold the record open for the full 90 days from an April 20, 2017 notice of transfer of the Veteran's appeal to the Board.  


CONCLUSION OF LAW

The July 11, 2017 Board decision addressing the issue of entitlement to an increased rating for degenerative arthritis of the lumbosacral spine, evaluated as 10 percent disabling prior to March 4, 2015, and 40 percent disabling thereafter is vacated.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

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).  

The July 11, 2017 Board decision was issued prior to responding to a request for the Board to hold the record open for the full 90 days from an April 20, 2017 notice of transfer of the Veteran's appeal to the Board.  The Board's action denied the Veteran due process of law.   

Accordingly, the July 11, 2017 Board decision addressing the issue of entitlement to an increased rating for degenerative arthritis of the lumbosacral spine, evaluated as 10 percent disabling prior to March 4, 2015 is vacated.  





ORDER

The July 11, 2017 Board decision addressing the issue of entitlement to an increased rating for degenerative arthritis of the lumbosacral spine, evaluated as 10 percent disabling prior to March 4, 2015, is vacated. 



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs