Citation Nr: 1817261	
Decision Date: 03/20/18    Archive Date: 03/30/18

DOCKET NO.  16-11 463A	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

1.  Entitlement to an initial rating in excess of 50 percent for adjustment disorder with depressed mood.  

2.  Entitlement to an initial rating in excess of 20 percent for the period prior to September 28, 2017 and in excess of 40 percent thereafter, for degenerative arthritis of the lumbar spine, with bilateral positive straight leg raising.   


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

Amanda Baker, Associate Counsel

INTRODUCTION

The Veteran served on active duty from December 1989 to August 1991.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In July 2017 the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further development.

In an October 2017 rating decision, the RO increased the rating from 30 percent to 50 percent for adjustment disorder with depressed mood, effective August 13, 2012.  As that increase did not result in the maximum rating available, the issue remained on appeal.  AB v. Brown, 6 Vet. App. 35 (1993).

On December 14, 2017, the Board issued a decision that denied the claim for an initial rating in excess of 50 percent for adjustment disorder with depressed mood.  However, prior to issuance of the Board decision, on December 12, 2017, the Veteran's representative submitted a motion to request a 90 day extension to submit additional evidence that was not addressed, as discussed in detail below.  That request, although received by VA on December 12, 2017, was not stored in the claims file until December 19, 2017.  

The Board acknowledges that the December 2017 decision also issued a partial grant for the claim of entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the lumbar spine (lumbar spine disability).  The decision granted a rating of 40 percent from September 28, 2017, and denied the claim prior to that date.  As the submission of additional evidence would not impact on the grant of the 40 percent rating from September 28, 2017, that part of the December 2017 decision should not and is not vacated.  The Board has recharacterized the lumbar spine issue to reflect the remaining issue.  


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).    

On December 12, 2017, the Veteran's representative filed a motion to request 90 days to submit additional evidence.  The Board did not rule on the motion prior to issuance of a December 14, 2017 decision that denied the claim for entitlement to an initial rating in excess of 50 percent for adjustment disorder with depressed mood.  This constitutes a denial of due process.  38 C.F.R. § 20.904(a)(3) (2017).  The Board will grant the motion in a separate letter.

Accordingly, the portion of the December 14, 2017 Board decision addressing the issue of entitlement to an initial rating in excess of 50 percent for adjustment disorder with depressed mood, and the issue of entitlement to an initial rating in excess of 20 percent for the period prior to September 28, 2017 and in excess of 40 percent thereafter, for degenerative arthritis of the lumbar spine, with bilateral positive straight leg raising, is vacated.



	                        ____________________________________________
	JAMES G. REINHART
	Veterans Law Judge, Board of Veterans' Appeals