Citation Nr: 21027426 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-16 400 DATE: May 5, 2021 ORDER TO VACATE 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. In a November 10, 2015 decision, the Board remanded the issue of a total disability based on individual unemployability (TDIU) prior to January 23, 2014, for further development. Subsequently, the Veteran submitted July 2019 and January 2021 Motions to Vacate the November 2015 decision to correct a denial of due process of law. However, in August 2020, the Veteran submitted a Form 10182 requesting removal of the claim from the "legacy" system and adjudication under the new process established by the Appeals Modernization Act (AMA). In December 2020, the Board notified him and his representative that the Form 10182 had been received and that his claim was placed on the Direct Review docket. The claim for a TDIU prior to January 23, 2014, was subsequently adjudicated in accordance with the AMA system. Therefore, the appeal is no longer before the Board. As such, to the extent that a Motion to Vacate addressed this issue, it is denied. In the November 2015 rating decision, the Board additionally denied a rating in excess of 30 percent for posttraumatic stress disorder (PTSD), service connection for pulmonary amyloidosis, and entitlement to a TDIU since January 23, 2014. Subsequently, on December 7, 2015, VA received a November 14, 2015, request from the Veteran, through his representative, for a hearing before a Veterans Law Judge on the issues on appeal. As noted above, in July 2019 and January 2021 the Veteran submitted Motions to Vacate the November 2015 decision to correct a denial of due process of law. The Veteran explained that the Board had the wrong address for his representative and did not timely send a copy of the November 2015 decision to the correct address. He further renewed his request for a hearing, noting that a hearing was previously scheduled in May 2018 but that he was hospitalized around that time and was unable to appear. A review of the record reveals that the address to which the Board sent the Veteran's representative's copy of the November 2015 rating decision did not reflect the address from which the representative sent the November 14, 2015 hearing request. As such, the failure to send the November 2015 rating decision to the representative's correct address was in no part the fault of the Veteran or his representative, and the proper remedy with respect to the issues of an increased rating for PTSD, service connection for pulmonary amyloidosis, and entitlement to a TDIU since January 23, 2014, is vacatur of the Board's decision. The Motion to Vacate is, therefore, granted as to his claims for PTSD, pulmonary amyloidosis and a TDIU since January 23, 2014. The Veteran will be granted an additional 90 days from the date of this decision to submit additional evidence or argument on his claims. The Board further observes that the Veteran's January 2021 Motion renewed his request for a hearing before a Veterans Law Judge on the claims at issue and finds that further development should proceed accordingly at the expiration of the 90 day extension. Under 38 U.S.C. § 7252, only a decision of the Board is appealable to the Veterans Claims Court. This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.