Citation Nr: 21030601
Decision Date: 05/19/21	Archive Date: 05/19/21

DOCKET NO. 17-58 959
DATE: May 19, 2021

ORDER

Vacatur of the September 2019 Board decision to the extent it denied an earlier effective date prior to August 2014 for a disability rating in excess of 70 percent for dysthymic disorder is granted.

FINDING OF FACT

In the September 2019 Board decision, the Veteran was denied due process of law in that the statement of the case (SOC) was not sent to his representative.

CONCLUSION OF LAW

The criteria for a motion of partial vacatur of the Board's September 2019 decision have been met.  38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.904 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1983 to May 1992.  

This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, AL.

Effective Date

Vacatur of the September 2019 Board decision to the extent it denied an earlier effective date prior to August 2014 for a disability rating in excess of 70 percent for dysthymic disorder

In a September 2019 decision, the Board in pertinent part denied the Veteran an earlier effective date prior to August 2014 for a disability rating in excess of 70 percent for dysthymic disorder.  However, the Veteran, through his attorney, has filed a Motion for Reconsideration and moved the Board to vacate that decision on the grounds that the Veteran was denied due process.  The Veteran asserts that due process was denied because the Veteran's representative did not receive a copy of the February 2011 statement of the case (SOC).

Prior to the Board's September 2019 denial, the Board issued a remand in August 2010 stating that "[i]n a March 2009 statement, the Veteran, through his attorney, expressed disagreement with the... initial 30 percent rating assigned for dysthymic disorder."  In February 2011, the RO issued an SOC continuing the Veteran's evaluation of dysthymic disorder at 30 percent.  See February 2011 SOC.  However, the Veteran's representative contends that he did not receive a copy of the February 2011 SOC.  See January 2020 Third Party Correspondence.  The representative explains that the SOC was sent to the Veteran's previous representative, DAV; thus, he was unable to properly appeal.  See Id.; see also February 2011 SOC.

The Board of Veterans' Appeals (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).  After review and consideration of the Veteran's Motion and argument, the Board grants the Veteran's Motion for Reconsideration, and partially vacates the September 2019 Board decision that denied earlier effective date prior to August 2014 for a disability rating in excess of 70 percent for dysthymic disorder.  38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.904 (2019).

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Slaughter, 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.