Citation Nr: 21025714 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-40 755 DATE: April 28, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, anxiety, and depression, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for diabetes mellitus, type II (DMII) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a gastrointestinal disorder, to include acid reflux, is remanded. Entitlement to service connection for a disability manifested by heat exhaustion is remanded. Entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities is remanded. Entitlement to an initial compensable disability rating for allergic rhinitis prior to September 1, 2015, and in excess of 10 percent thereafter, is remanded. Entitlement to an initial disability rating in excess of 30 percent for sinusitis is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to nonservice-connected pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1989 to March 1991. These matters come to the Board of Veterans’ Appeals (Board) from June 2013, December 2014, and October 2015 rating decisions which granted service connection for sinusitis, evaluated as noncompensable, effective July 24, 2012; granted service connection for allergic rhinitis, evaluated as noncompensable, effective July 24, 2012 and at 10 percent, effective September 1, 2015; denied service connection for sleep apnea, DMII, hypertension, acid reflux, heat exhaustion, erectile dysfunction, and a psychiatric disorder; denied entitlement to a 10 percent evaluation based upon multiple noncompensable service-connected disabilities from July 24, 2012 to September 1, 2015; and denied entitlement to TDIU and nonservice-connected pension benefits. In a March 2019 decision, the Board denied entitlement to service connection for hypertension, sleep apnea, DMII, a gastrointestinal disorder, to include acid reflux, erectile dysfunction, a disability manifested by heat exhaustion, and an acquired psychiatric disorder, to include adjustment disorder, anxiety, and depression; denied entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities; denied entitlement to an initial compensable disability rating for allergic rhinitis prior to September 1, 2015 and in excess of 10 percent thereafter; granted an increased rating of 30 percent, but no higher, for sinusitis; and denied entitlement to TDIU and nonservice-connected pension benefits. In July 2019, the Veteran filed a motion to vacate the Board’s March 2019 decision, which was denied by the Board in May 2020. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) and in a February 2021 order, the Court granted the parties’ Joint Motion for Partial Remand (Motion), vacated the Board’s March 2019 decision in its entirety except for the Board’s grant of a 30 percent rating for sinusitis, and remanded the appeal for further action consistent with the Motion. The claims of entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, anxiety, and depression, sleep apnea, diabetes mellitus, type II (DMII), hypertension, erectile dysfunction, a gastrointestinal disorder, to include acid reflux, and a disability manifested by heat exhaustion; entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities; entitlement to an initial compensable disability rating for allergic rhinitis prior to September 1, 2015, and in excess of 10 percent thereafter, and to an initial disability rating in excess of 30 percent for sinusitis; and entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities and to nonservice-connected pension benefits, are remanded. At issue in this case is whether the Veteran and his representative, Allen Gumpenberger, should have been allowed to submit additional evidence in support of the Veteran’s appeal in light of the fact that Mr. Gumpenberger’s copy of the Board’s March 2019 decision was sent to an incorrect address and was returned as undeliverable. For the reasons discussed below, the Board finds that the Veteran and his representative should have had additional time to submit evidence in support of the Veteran’s appeal as a result of denial of due process which occurred prior to the Board’s March 2019 decision. By way of history, in October 2013, the Veteran appointed Allen Gumpenberger as his representative. On the VA Form 21-22a (Appointment of Individual as Claimant’s Representative), Mr. Gumpenberger’s address was listed as a post office box in Unionville, Connecticut. Subsequent to the appointment of Mr. Gumpenberger, correspondence between VA and Mr. Gumpenberger reflect that Mr. Gumpenberger’s address was successfully updated to a post office box in Oakley, Kansas. However, at some point, VA changed Mr. Gumpenberger’s address to an address in Shelton, Connecticut. See February 1 and March 15, 2018 Rapid Appeals Modernization Program letters, returned as undeliverable in February and March 2018. VA then updated Mr. Gumpenberger’s address to his old post office box in Unionville, Connecticut. See October 2018 Statement and Supplemental Statements of the Case (SOC and SSOC). On October 31, 2018, Mr. Gumpenberger informed VA that he had not received the October 2018 SOC and SSOC, and further informed VA that his correct address was a post office box in Conroe, Texas. On the same day, October 31, 2018, the Board sent a letter to the Veteran and Mr. Gumpenberger that the Veteran’s appeal had been docketed at the Board. The letter also stated that the Veteran had 90 days from the date of the letter or until the Board issued a decision in his appeal (whichever came first) to submit additional argument or evidence. This letter was sent to Mr. Gumpenberger at his old Unionville, Connecticut address and was returned as undeliverable in December 2018. The misaddressed October 2018 SOC and SSOC were also returned as undeliverable in December 2018. On January 28, 2019, the Board sent a docket letter for a second appeal stream to the Veteran with a note that Mr. Gumpenberger was carbon copied. The Board notes that the letter does not indicate the address to which the Board sent Mr. Gumpenberger’s copy. On March 22, 2019, the Board issued the decision as described above. On March 27, 2019, Mr. Gumpenberger submitted a letter requesting the full 90 days before the Board issued a decision, plus an additional 30-day extension to submit additional evidence. In May 2019, the copy of the March 2019 Board decision addressed to Mr. Gumpenberger was returned as undeliverable. Subsequent VA correspondence to Mr. Gumpenberger was successfully sent to the Conroe, Texas post office box. Upon review of the evidence of record, the Board finds that there was a prejudicial denial of due process. Specifically, the record shows that Mr. Gumpenberger’s address was erroneously changed, and by the time he was aware of the error and attempted to correct his address, both VA and the Board had sent correspondence, including the Board docket letter, to the incorrect address. Prior to issuing the March 2019 Board decision, the Board had a duty to send proper notice to the Veteran and his representative of the status of the Veteran’s claims and of his appellate rights at the Board, such that, in light of the numerous returned documents, the Board should have verified the representative’s correct address and resent the SOC, SSOC, and Board docket letters when they were returned as undeliverable. Failure to do so resulted in a duty to notify error and denial of due process. Appellants have a right to fair process in the development and adjudication of their claims and appeals before VA. Bryant v. Wilkie, 33 Vet. App. 43 (2020). Inasmuch as the VA and Board communications were erroneously sent to the incorrect address prior to and up through the March 2019 Board decision, the Board finds that the question of whether the Veteran should have been allowed to submit additional evidence in support of his claim is rendered moot. Pursuant to the Court’s February 2021 order, the Court vacated the Board’s March 2019 decision in its entirety except for the Board’s grant of a 30 percent rating for sinusitis. In a March 2021 Appeal Notification Letter and April 2021 response, the Board offered, and the Veteran accepted, the option of having his case returned to the Agency of Original Jurisdiction (AOJ) for initial review of additional evidence submitted in support of his appeal. The Veteran waived the time remaining of the 90-day period between the March 2021 Appeal Notification Letter and the issuance of this remand. As such, the Veteran’s appeal must be remanded for readjudication and issuance of an SSOC. The matters are REMANDED for the following action: After completing any development that may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.