Citation Nr: 22015576 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 16-05 027 DATE: March 18, 2022 ORDER The Veteran's June 2021 Motion to Vacate is granted and the March 2021 Board of Veterans' Appeals (Board) decision is vacated with respect to the issues adjudicated therein. FINDING OF FACT The March 2021 Board decision was issued on an incomplete factual basis with respect to the issue of whether the Veteran's hearing request was satisfied. To ensure due process of law, that Board decision is vacated, so that the Veteran may attend an additional Board hearing prior to a final merits review of her claims. CONCLUSION OF LAW The criteria for vacatur of the March 2021 Board decision have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000 (formerly 20.904). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to May 1983. In March 2021, the Board issued a decision denying (1) entitlement to an effective date prior to March 28, 2011 for the award of service connection for a left shoulder disability, and (2) entitlement to an effective date prior to March 28, 2011 for the award of an increased rating of 10 percent for residual fracture of right middle cuneiform, with hammer toe and hallux valgus, in the left foot. 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. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000 (formerly 20.904). In June 2021, the Veteran, through her representative, filed a Motion to Vacate the March 2021 Board decision. The Veteran alleged that when she filed her February 1, 2021 request to withdraw her virtual Board hearing request, her decision was based on the receipt of misleading information from the Board that she relied upon to her detriment; and as such, she has been effectively deprived of her right to appear at a complete Board hearing regarding the claims on appeal. She alleges that this action has resulted in a denial of due process of law. In August 2019, the Veteran provided sworn testimony at a Board hearing before Veterans Law Judge K.A. On October 1, 2019, the Veteran was mailed correspondence from the Board notifying her that the agency was unable to produce a complete transcript of the August 2019 Board proceedings due to the audio malfunctions heard throughout her testimony in the Digital Audio Recording System. She was offered the opportunity to appear at an additional Board hearing. The October 1, 2019 notice letter was returned to the Board as undeliverable. In March 2020, the Board mailed additional correspondence notifying the Veteran that the August 2019 Board hearing was not completely recorded and there were issues producing a complete written transcript of the proceedings. The Veteran was offered the opportunity to appear at a second Board hearing. Later that month, the Veteran responded and requested to appear at a second Board hearing via videoconference. In November 2020, the Veteran was mailed correspondence indicating that she was scheduled for a Board virtual tele-hearing on February 1, 2021. On February 1, 2021, the Veteran filed a request to withdraw her scheduled Board virtual hearing. In an email accompanying the request, the Veteran indicated that she received word from agency personnel that the prior hearing clarification letters were mailed to her in error, and her August 2019 Board hearing transcript was "shown to be still good now." In the June 2021 Motion to Vacate, the Veteran explained that she was contacted by a Board hearing coordinator prior to the scheduled February 1, 2021 Board virtual hearing and was assured that the October 2019 and March 2020 hearing clarification letters were sent in error, as her August 2019 Board hearing was properly recorded, and the written transcript of the proceedings was complete. Indeed, the Veteran's file in the Veterans Appeals Control and Locator System (VACOLS) contains a notation under the Hearing tab where Board personnel charted: Veteran hearing was held on 8-20-2019. HCL [hearing clarification letter] was sent in error. The transcript is correct and uploaded on 8-20-2019. Veteran/Rep opt for virtual hearing. Letter Sent. " The Veteran explained in the Motion to Vacate that she only filed the request to withdraw her Board virtual hearing scheduled for February 1, 2021 because she was under the belief that an additional Board hearing was no longer necessary, as she was told by a Board hearing coordinator that the August 2019 Board proceedings were fully captured and reduced into a complete written transcript that could be relied upon in the adjudication of her claims. The notation in the Hearing tab of the Veteran's VACOLS file corroborates the Veteran's statements regarding information relayed to her by a Board hearing coordinator. Despite the assurances from agency personnel that her August 2019 Board hearing was fully captured, the Board then issued the March 2021 decision, which stated in relevant part that the hearing transcript for the August 2019 Board hearing was "incomplete." This factual finding was contrary to the information in the Hearing tab of the Veteran's VACOLS file, quoted above, which was relayed to the Veteran by a Board hearing coordinator and relied upon by the Veteran when she elected to withdraw the request to attend the scheduled February 1, 2021 Board virtual hearing. In the Motion to Vacate, the Veteran argued she was denied due process of law because she was told by agency personnel that her August 2019 Board hearing transcript was complete and there was no need for an additional Board hearing. Relying on this information, the Veteran withdrew her scheduled February 1, 2021 Board virtual hearing request. She was later informed in the March 2021 Board decision that the transcript for the August 2019 Board decision was "incomplete;" without adequate reasons and bases explaining how or why the hearing transcript was deemed incomplete. The undersigned's review of the August 2019 Board hearing transcript reveals several instances where statements were deemed "inaudible," rendering the transcript difficult to read and interpret. The Veteran argued: [I]f it were not for the fact, that she was led to believe that the HCL [hearing clarification letter] dated October 1, 2019 was sent in error and the August 2019 hearing transcript was good, she would have continued to opt in for her VIRTUAL HEARING scheduled on February 1, 2021, and the outcome of her hearing may have manifestly changed the outcome of her case. As such, the Veteran asserted that she was deprived of her right to appear at a Board hearing for the issues on appeal, which was fully recorded and reduced to a complete written transcript that could be considered in the adjudication of her claims. Following a complete review of the electronic claims file, and in consideration of the arguments raised in the June 2021 Motion to Vacate, the Board agrees that the above-referenced sequence of events has deprived the Veteran of her right to appear at a complete Board hearing for the issues on appeal, and the Board erred in misleading her regarding the completeness of the August 2019 Board hearing transcript. As the record shows that the Veteran has been denied due process of law, the Veteran's June 2021 Motion to Vacate is granted, and the March 2021 Board decision is vacated with respect to the issues adjudicated therein. The Board notes that Veterans Law Judge K.A. is no longer available to participate in the Veteran's appeal. The Veteran shall be provided a Board hearing before a new Veterans Law Judge; and thereafter, a new Board decision will be entered as if the March 2021 Board decision had never been issued. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Galante, M., 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.