Citation Nr: 21015153 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-38 435 DATE: March 16, 2021 ORDER The Motion to Vacate the Board of Veterans’ Appeals December 2020 decision on the issue of entitlement to a disability rating in excess of 40 percent for the Veteran’s lumbar spine disability is granted. The Motion to Vacate the Board of Veterans' Appeals December 2020 remand on the issue of entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy is granted. The Motion to Vacate the Board of Veterans' Appeals December 2020 remand on the issue of entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy is granted. The Motion to Vacate the Board of Veterans' Appeals December 2020 on the issue of entitlement to service connection for the Veteran's obstructive sleep apnea is granted. The Motion to Vacate the Board of Veterans' Appeals December 2020 remand on the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to the promulgation of the December 2020 decision and remand in this case, the Veteran elected consideration of his appeal under the Appeals Modernization Act (AMA) for the issues of entitlement to a disability rating in excess of 40 percent for a lumbar spine disability, a disability rating in excess of 10 percent for left lower extremity radiculopathy, a disability rating in excess of 10 percent for right lower extremity radiculopathy, service connection for obstructive sleep apnea, and a TDIU. 2. The election for consideration under AMA, however, was not uploaded into VA’s claim processing system until after the Board had issued a legacy decision and remand. CONCLUSION OF LAW The Board's December 2020 decision and remand is vacated in its entirety. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Army from March 1976 to March 1979. The Veteran served during Peacetime. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in June 2019. A transcript of the hearing is associated with the claims file. This case was previously before the Board in September 2019 when it was remanded to obtain outstanding treatment records, obtain VA examinations to determine the nature and severity of the Veteran's lumbar spine disability and lower extremity radiculopathy, and obtain a VA examination to determine the nature and etiology of his obstructive sleep apnea. Updated treatment records were subsequently obtained and associated with the file, the Veteran received the requested VA examinations, and a Supplemental Statement of the Case (SSOC) was issued to the Veteran in September 2020. In December 2020, the Board issued a decision denying a disability rating in excess of 40 percent for a lumbar spine disability and remanding a disability rating in excess of 10 percent for left lower extremity radiculopathy, a disability rating in excess of 10 percent for right lower extremity radiculopathy, service connection for obstructive sleep apnea, and entitlement to a TDIU. In January 2021, the Veteran’s counsel submitted a Motion to Vacate the Board’s December 2020 decision and remand. Analysis In this case, in November 2021, VA received the Veteran’s request to opt-in to the AMA system for entitlement to a disability rating in excess of 40 percent for a lumbar spine disability, a disability rating in excess of 10 percent for left lower extremity radiculopathy, a disability rating in excess of 10 percent for right lower extremity radiculopathy, service connection for obstructive sleep apnea, and a TDIU. Before this request was uploaded to VA’s claim processing system, the Board issued a decision on the issue of a disability rating in excess of 40 percent for a lumbar spine disability and issued a remand of the claims of entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy, a disability rating in excess of 10 percent for right lower extremity radiculopathy, service connection for obstructive sleep apnea, and a TDIU. Based on the foregoing, the Board finds it is proper to vacate the December 2020 decision on the issue of a disability rating in excess of 40 percent for a lumbar spine disability and the remand of the claims of entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy, a disability rating in excess of 10 percent for right lower extremity radiculopathy, service connection for obstructive sleep apnea, and a TDIU. In light of the above the December 2020 Board decision and remand will be vacated in its entirety. The Veteran’s AMA opt-in will be processed, and a new Board decision will be issued under AMA for the aforementioned issues. ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.