Citation Nr: 21002961 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-03 160 DATE: January 19, 2021 ORDER The motion to vacate the portion of the March 2019 Board of Veterans’ Appeals (Board) decision regarding whether new and material evidence was received in order to reopen the claim of entitlement to service connection for residuals of a stroke is granted. FINDINGS OF FACT 1. A March 2019 Board decision denied reopening the Veteran’s claim for entitlement to service connection for residuals of a stroke. 2. In April 2019, the Veteran filed a Motion to Vacate the March 2019 Board decision regarding whether new and material evidence was received in order to reopen the claim for entitlement to service connection for residuals of a stroke, alleging a violation of his due process rights. CONCLUSION OF LAW The criteria for vacating the portion of the March 2019 Board decision that denied reopening the claim for entitlement to service connection for residuals of a stroke have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1965 to April 1967, to include service in the Republic of Vietnam. The issue of whether new and material evidence was submitted in order to reopen the claim for entitlement to service connection for residuals of a stroke comes before the Board on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran perfected a timely appeal of this determination. See Notice of Disagreement, dated November 2018; Statement of the Case, dated December 2018; Substantive Appeal, dated January 2019. The Veteran did not request to appear before the Board for an optional hearing. This issue of whether new and material evidence has been submitted in order to reopen the claim for entitlement to service connection for residuals of a stroke was previously before the Board in March 2019, where it was denied on the merits. The Veteran filed a motion to vacate the decision in April 2019. The Board notes that the March 2019 Board decision also remanded the Veteran’s claim for entitlement to service connection for hypertension. However, in an April 2020 rating decision, the RO granted service connection for hypertension as noncompensable from September 5, 2018. As this represents a full grant of the benefits sought for this claim, there remains no aspect of the claim to be further substantiated and it is no longer before the Board. Motion to Vacate the March 27, 2019, Board decision that denied reopening the claim for entitlement to service connection for residuals of a stroke 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 C.F.R. § 7104(a); 38 C.F.R. § 20.1000. In the April 2019 motion to vacate, the Veteran, by and through his attorney, maintains that he submitted a motion requesting a 90-day extension in March 2019, which was not ruled on prior to the Board’s March 2019 decision. The Veteran argues that this amounted to a denial of his due process. The record reflects that the motion requesting a 90-day extension was received by VA on March 18, 2019 but was not uploaded to the Veteran’s claims file until May 10, 2019, after the Board had issued its decision. The Board finds that as the March 2019 Board decision was issued without acknowledging the March 2019 extension request, it constituted a denial of due process of law. Accordingly, the Board now vacates the portion of the March 2019 decision that adjudicated the issue of whether new and material evidence was submitted in order to reopen the claim for entitlement to service connection for residuals of a stroke. Additionally, the Board has reviewed the March 2019 extension request, and the Board will grant the Veteran’s motion for an extension of 90 days from the date of this vacatur. The Board will issue a new decision after the 90-day extension expires. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, Counsel 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.