Citation Nr: 21031292
Decision Date: 05/21/21	Archive Date: 05/21/21

DOCKET NO. 200928-120541
DATE: May 21, 2021

ORDER

The motion to vacate the issue of entitlement to service connection for hypertension (HTN), to include as secondary to service-connected obstructive sleep apnea (OSA), is granted.

FINDINGS OF FACT

1.	The March 25, 2021 Board decision that denied entitlement to service connection for HTN, to include as secondary to service-connected OSA, contains error which constitutes a denial of due process for the Veteran. 

2.	At the time of the March 25, 2021 Board decision, the Veteran had a pending hearing request. 

CONCLUSION OF LAW

The criteria for vacatur of the Board's March 25, 2021 decision addressing entitlement to service connection for HTN, to include as secondary to service-connected OSA, have been met.  38 U.S.C. §§ 7103, 7104; 38 C.F.R. § 20.1000.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from November 1986 to November 1990 and from August 2005 to June 2006 with additional service in the Reserves.

This matter comes to the Board of Veteran's Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The motion to vacate the issue of entitlement to service connection for HTN, to include as secondary to service-connected OSA, is granted.

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence.  38 C.F.R. § 20.1000.  For the reasons discussed below, the March 25, 2021 Board decision is vacated.  

By way of background, in May 2014 the Veteran testified at a video conference hearing before the undersigned.  The Board remanded this matter in October 2014 and April 2017 for additional development.  In September 2020, the Board erroneously issued a letter inviting the Veteran to request a virtual tele-hearing instead of waiting for a travel board hearing.  In October 2020, the Veteran responded to the letter and requested a virtual tele-hearing.  See October 2020 Report of Contact.  The hearing was scheduled for November 2020, but there was a scheduling issue and the Veteran requested that it be rescheduled. See November 2020 VA Form 27-0820.

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On March 25, 2021, the Board issued a decision that denied service connection for HTN, to include as secondary to service-connected OSA.  Upon review, when the decision was issued, the Veteran had an outstanding hearing request that had yet to be fulfilled.  Thus, the Board concludes the Veteran has been denied due process of the law because the March 25, 2021 Board decision was issued when there was a pending hearing request.  Accordingly, on the Board's own motion, the March 25, 2021 Board decision is vacated.

 

	 

REBECCA N. POULSON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.C. Allen, 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.