Citation Nr: 21072318
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 09-16 869
DATE: December 2, 2021

ORDER

Partial vacatur of the January 2020 Board decision, addressing the receipt of new and material evidence to reopen the claim for service connection for sleep apnea is granted, and to this extent only, the Boards January 2020 decision is partially vacated.

FINDING OF FACT

In a January 2020 decision, the Board adjudicated the issue pertaining to whether new and material evidence had been submitted sufficient to reopen the claim for service connection for sleep apnea at a time when a hearing request was pending for the issue.

CONCLUSION OF LAW

The criteria for partial vacatur of the January 2020 Board decision with regard to the issue of whether new and material evidence had been received to reopen the previously denied claim for service connection for sleep apnea have been met.  38 U.S.C. § 7103; 38 C.F.R. § 20.1000.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Marine Corps from August 1992 to November 1997.  

Vacatur 

The Board may vacate an appellate decision (in whole or in part) at any time upon request of the appellant or his 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. § 20.1000.

On its own motion, the Board vacates the January 2020 Board decision pertaining to the issue of whether new and material evidence was received sufficient to reopen the previously denied claim for service connection for sleep apnea.  The issue was adjudicated at a time when a hearing request was pending.  Accordingly, and to this extent only, the Board's January 2020 decision finding that new and material evidence had not been received sufficient to reopen the claim for service connection for sleep apnea is vacated.  The January 2020 Board decision otherwise remains undisturbed.  

 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Lutgens-Staley, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.