Citation Nr: 21010030
Decision Date: 02/23/21	Archive Date: 02/23/21

DOCKET NO. 12-21 368
DATE: February 23, 2021

ORDER

Vacatur of the August 6, 2020 Board decision to the extent it denied a rating more than 30 percent for migraine headaches is granted.

VACATUR

The Veteran had active service in the United States Navy January 1977 to January 1981.

In September 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The matter has been the subject or prior decisions, Court decisions, and Remand development.

On August 6, 2020, the Board granted entitlement to a rating of 30 percent, but no higher, for migraine headaches. The Veteran and his representative filed a motion to vacate the decision in December 2020. The matter is again before the Board.

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) (2012); 38 C.F.R. § 20.904 (2019).

Here, the Board’s August 6, 2020 decision granted entitlement to a rating of 30 percent, but no higher, for the Veteran’s migraine headaches. The Veteran and his representative seek Vacatur of the decision, apparently to the extent it denied a rating more than 30 percent for migraine headaches. Essentially, it is alleged that the Veteran’s due process rights were violated by not providing sufficient opportunity to offer evidence on his behalf. To that end, the Veteran and his representative argue that a June 28, 2020 Board letter stated that the appeal had resumed its place on the docket and noted that the Veteran had 90 days from the date of the letter or until the Board issued a decision to submit additional evidence or argument. However, on July 9, 2020, the Veteran’s representative submitted a letter to the Board requesting the full 90 days to submit additional argument. This extension was requested as owing to the COVID 19 pandemic, the Veteran’s representative was experiencing staffing difficulties.  While it is not clear whether this letter was in the file at the time of the decision, clearly it had been submitted before the decision was entered.  It is argued that this motion was not ruled on prior to the August 6, 2020 Board decision at issue. 

Considering the above, the Board concludes that the Veteran’s due process rights may have been potentially violated. See 38 C.F.R. § 20.600 (2019). However, because the Board in part granted the Veteran’s appeal, and this portion of the decision was effectuated by the Agency of Original Jurisdiction (AOJ) in August 2020, there is no harm in allowing that portion of the Board’s decision awarding benefits to stand. As such, the Board’s August 6, 2020, decision must be vacated only to the extent it denied the maximum benefit on appeal as reflected above.

 

Following this vacatur, the matter will be held at the Board in abeyance for 90 days for submission of additional evidence, or the submission of evidence with written waiver of any remaining portion of the 90 day period.

 

MICHAEL D. LYON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Miller, 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.