Citation Nr: 21007799 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-08 646 DATE: February 10, 2021 ORDER The Appellant’s December 7, 2020 Motion to Vacate is granted, and the Board of Veterans’ Appeals (Board) shall vacate the portion of the October 14, 2020 decision denying entitlement to a disability rating in excess of 40 percent for the Veteran’s service-connected type II diabetes mellitus with microalbuminuria, to include on an extraschedular basis. FINDINGS OF FACT 1. On October 14, 2020, the Board issued a decision that, in pertinent part, denied entitlement to a disability rating in excess of 40 percent for the Veteran’s service-connected type II diabetes mellitus with microalbuminuria, to include on an extraschedular basis. 2. On December 7, 2020, the Appellant, through her attorney, filed a Motion to Vacate requesting vacatur of the portion of the October 14, 2020 Board decision that denied entitlement to a disability rating in excess of 40 percent for the Veteran’s service-connected type II diabetes mellitus with microalbuminuria, to include on an extraschedular basis, alleging a violation of due process rights. Specifically, the Appellant alleged that the Board issued its October 14, 2020 decision prior to ruling on her October 8, 2020 request that the Board wait until January 5, 2021 before issuing a decision on the merits. The Appellant’s allegations are supported by the evidence of record and vacatur of the portion of the October 14, 2020 Board decision denying entitlement to a disability rating in excess of 40 percent for the Veteran’s service-connected type II diabetes mellitus with microalbuminuria, to include on an extraschedular basis, is warranted. 3. The October 14, 2020 Board decision granted entitlement to a total disability rating based on individual unemployability (TDIU). As this finding was fully favorable to the Appellant, it shall remain final and will not be vacated. CONCLUSIONS OF LAW The Board shall vacate the portion of the October 14, 2020 decision denying entitlement to a disability rating in excess of 40 percent for the Veteran’s service-connected type II diabetes mellitus with microalbuminuria, to include on an extraschedular basis. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000(a) (formerly 20.904(a)). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (formerly 20.904). On October 14, 2020, the Board issued a decision denying entitlement to a disability rating in excess of 40 percent for the Veteran’s service-connected type II diabetes mellitus with microalbuminuria, to include on an extraschedular basis, and granting entitlement to a TDIU. In a faxed submission received December 7, 2020, the Appellant, through her attorney, filed a Motion to Vacate the Board’s October 14, 2020 decision to the extent that it denied entitlement to a disability rating in excess of 40 percent for the Veteran’s service-connected type II diabetes mellitus with microalbuminuria, to include on an extraschedular basis. In this motion, the attorney asserted that the Board did not consider or rule on the Appellant’s October 8, 2020 request that the Board wait until January 5, 2021 before issuing a decision on the claim. Review of the electronic claims file confirms that VA received a letter from the Appellant’s attorney on October 8, 2020 requesting that the Board wait until January 5, 2021 before issuing a decision. The attorney advanced that the extension of time was needed to obtain additional evidence and to prepare a submission on the Appellant’s behalf. As such, the attorney’s letter was received by VA on October 8, 2020, prior to the issuance of the October 14, 2020 Board decision, and should have been ruled upon by the Board prior to the issuance of the Board decision. Considering the above, the Board finds that issuing the October 14, 2020 decision without acknowledging or ruling on the October 8, 2020 request for an extension of time until January 5, 2021 was a denial of the Appellant’s due process rights. Accordingly, the Board shall grant the Appellant’s request to vacate the portion of the October 14, 2020 decision denying entitlement to a disability rating in excess of 40 percent for the Veteran’s service-connected type II diabetes mellitus with microalbuminuria, to include on an extraschedular basis. Further, this claim shall be held in abeyance for 90 days from the date of this decision to allow the Appellant’s attorney to submit any additional evidence or argument he deems as warranted. [Continued on Next Page]   The Board notes that this vacatur order is limited to the claim specifically identified above, and the Board declines to disturb the portion of the October 14, 2020 Board decision that granted entitlement to a TDIU, as this determination was fully favorable to the Appellant and has already been implemented via an October 16, 2020 rating decision. . Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.