Citation Nr: 20060508
Decision Date: 09/15/20	Archive Date: 09/15/20

DOCKET NO. 17-22 736
DATE: September 15, 2020

ORDER

Vacatur of the June 5, 2020 Board Decision denying entitlement to service connection for a gastrointestinal disorder characterized by diarrhea and vomiting is granted.

FINDING OF FACT

The June 5, 2020 Board decision effectively denied the Veteran due process by adjudicating under the Legacy appeal system, after he had elected consideration under the Appeals Modernization Act by completing a valid Form 10182 for the issue of entitlement to service connection for a gastrointestinal disorder characterized by diarrhea and vomiting.

CONCLUSION OF LAW

The criteria for vacatur of the June 5, 2020 Board decision denying entitlement to service connection for a gastrointestinal disorder characterized by diarrhea and vomiting, have been met. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1989 to March 1992.

Following the issuance of an April 2020 supplemental statement of the case (SSOC), on June 4, 2020, the Veteran submitted a VA Form 10182 requesting a Hearing by a Veterans Law Judge under the new regulations of the Appeals Modernization Act (AMA). 38 C.F.R. § 19.2(d). The Board issued a Decision denying entitlement to service connection for a gastrointestinal disorder characterized by diarrhea and vomiting under the Legacy appeal system on June 5, 2020. At the time the Board decision was published, the Veteran’s VA Form 10182 was not made part of the casefile by the RO and was not available to the Board.

Vacatur of the June 5, 2020 Board Decision denying entitlement to service connection for a gastrointestinal disorder characterized by diarrhea and vomiting

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.

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Prior to the Board’s June 5, 2020 Decision denying entitlement to service connection for a gastrointestinal disorder characterized by diarrhea and vomiting, the Veteran submitted a VA Form 10182 requesting a Hearing with a Veterans Law Judge under the new regulations of the AMA of the issue. 38 C.F.R. § 19.2(d). His election of the AMA precluded further consideration of the issue under the Legacy appeal system.

As the Veteran had timely opted into AMA following the issuance of an April 2020 SSOC, the Board improperly adjudicated those issues under the Legacy appeal system, denying the benefits afforded him by the AMA. As the Veteran was denied due process of law, vacatur of the June 2020 Board Decision is warranted. 38 C.F.R. § 3.109(b).

 

 

C. TRUEBA

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Lee Feldman, Attorney Advisor

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.