Citation Nr: 21026274 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-04 795 DATE: April 30, 2021 ORDER The February 3, 2021 Board order is vacated as to the remand of the issue of entitlement to a rating in excess of 30 percent for cluster headaches prior to February 13, 2020. The February 3, 2021 Board order is vacated as to the remand of the issue of entitlement to a rating in excess of 30 percent for maxillary sinusitis and cluster headaches from February 13, 2020. The February 3, 2021 Board order is vacated as to the remand of the issue of entitlement to a rating in excess of 10 percent for maxillary sinusitis prior to February 13, 2020. The February 3, 2021 Board order is vacated as to the remand of the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). FINDINGS OF FACT 1. At the time of the Board’s February 3, 2021 order (pursuant to a legacy appeal) that, in part, remanded entitlement to a rating in excess of 30 percent for cluster headaches prior to February 13, 2020, the Department of Veterans Affairs (VA) was in possession of the appellant’s timely election to opt into the modernized appeals system for this issue. 2. At the time of the Board’s February 3, 2021 order (pursuant to a legacy appeal) that, in part, remanded entitlement to a rating in excess of 30 percent for maxillary sinusitis and cluster headaches from February 13, 2020, VA was in possession of the appellant’s timely election to opt into the modernized appeals system for this issue. 3. At the time of the Board’s February 3, 2021 order (pursuant to a legacy appeal) that, in part, remanded entitlement to a rating in excess of 10 percent for maxillary sinusitis prior to February 13, 2020, VA was in possession of the appellant’s timely election to opt into the modernized appeals system for this issue. 4. At the time of the Board’s February 3, 2021 order (pursuant to a legacy appeal) that, in part, remanded entitlement to a TDIU, VA was in possession of the appellant’s timely election to opt into the modernized appeals system for this issue. CONCLUSIONS OF LAW 1. The criteria for partial vacatur of the Board’s February 3, 2021 legacy decision remanding entitlement to a rating in excess of 30 percent for cluster headaches prior to February 13, 2020 are met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. 2. The criteria for partial vacatur of the Board’s February 3, 2021 legacy decision remanding entitlement to a rating in excess of 30 percent for maxillary sinusitis and cluster headaches from February 13, 2020 are met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. 3. The criteria for partial vacatur of the Board’s February 3, 2021 legacy decision remanding entitlement to a rating in excess of 10 percent for maxillary sinusitis prior to February 13, 2020 are met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. 4. The criteria for partial vacatur of the Board’s February 3, 2021 legacy decision remanding entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) are met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to June 1998. On February 3, 2021, the Board of Veterans' Appeals (Board) issued a decision which, in pertinent part, remanded the following issues: (a) entitlement to a rating in excess of 30 percent for cluster headaches prior to February 13, 2020; entitlement to a rating in excess of 30 percent for maxillary sinusitis and cluster headaches from February 13, 2020; entitlement to a rating in excess of 10 percent for maxillary sinusitis prior to February 13, 2020; and entitlement to a TDIU. The Board may vacate an appellate decision at any time upon request of the appellant, 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. §§ 20.904, 20.1000. After a review of the evidence, the Board determines that the February 3, 2021, Board decision should be vacated, in part, as specified in the order above. On October 26, 2020, VA received VA Form 10182 in which the appellant timely requested the post-SSOC option for Board review (Hearing Docket) under the Veterans Appeals Improvement and Modernization Act of 2017 (AMA) for the issues of, inter alia, entitlement to increased ratings for maxillary sinusitis and cluster headaches and entitlement to a TDIU. The “opt-in” AMA appeal was docketed on January 15, 2021, but not processed so as to close out the pre- AMA (“legacy”) appeal of those issues that had been initiated by the filing of VA Form 9 in December 2015. The issues were adjudicated by the Board in the February 3, 2021 decision without allowing for the option for direct review under the AMA. In light of the appellant's timely request, and in order to afford the appellant due process, the Board determines that partial vacatur is warranted. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Vacatur is in the nature of a preliminary order and is not a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven D. Najarian, 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.