Citation Nr: 21065685
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 15-32 414
DATE: October 27, 2021

ORDER

The decision issued by the Board of Veterans' Appeals (Board) in May 2021, remanding the Veteran's claim to entitlement to an initial rating in excess of 40 percent for a traumatic brain injury with dizziness (TBI), is partially vacated.

FINDING OF FACT

The May 2021 Board decision remanded the Veteran's claim of entitlement to an initial rating in excess of 40 percent for a TBI.  However, prior to this decision, the Veteran opted his claim to entitlement to an initial rating in excess of 40 percent for a TBI into the Appeals Modernization Act (AMA) through the timely submission of a VA Form 20-0996, Request for Higher-Level Review.

CONCLUSION OF LAW

The criteria for partial vacatur of the Board's May 2021 decision remanding the Veteran's claim to entitlement to an initial rating in excess of 40 percent for a TBI, have been met.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000.

REASONS AND BASES FOR 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. § 20.1000.

The May 2021 Board decision adjudicated the issues of entitlement to separate disability ratings for migraine headaches associated with residuals of a TBI and entitlement to a total disability rating based on individual unemployability.  Additionally, the Board remanded the issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to an initial rating in excess of 40 percent for a TBI to the agency of original jurisdiction (AOJ) for further development.  Following the issuance of this decision, the Board, on its own motion, moved to vacate the decision as it pertains to the remand of the Veteran's claim to an initial rating in excess of 40 percent for a TBI, as the Veteran's timely submission of a VA Form 20-0996, Request for Higher-Level Review, submitted in August 2020, removed the appeal from the legacy system and placed it within the modernized appeal system known as AMA.

The Board's May 2021 Remand denied the Veteran his due process rights by not allowing the AOJ to adjudicate the claimed issue under AMA as he appropriately requested.  Accordingly, the Board finds it proper to partially vacate that decision.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000.  A new decision addressing the Veteran's appeal under the AMA system will be issued separately.  The Board apologizes for the delay.

The Board notes that an August 2021 rating decision adjudicated and granted the Veteran's claim for service connection for an acquired psychiatric disorder in full.  Accordingly, there remains no case or controversy in this matter.

 

 

JENNIFER HWA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.V. Bona, Associate 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.