Citation Nr: A25035499
Decision Date: 04/17/25	Archive Date: 04/17/25

DOCKET NO. 200330-79141
DATE: April 17, 2025

REMANDED

Entitlement to an initial rating in excess of 10 percent for hypertension is remanded.

REASONS FOR REMAND

The Veteran has active service from September 1992 to September 1996.  

This case is before the Board of Veterans' Appeals (Board) from a December 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

The Board issued an October 2023 decision denying this issue (10/26/2023 BVA Decision). The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). 

Pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the Board's decision that denied entitlement to an initial rating in excess of 10 percent for hypertension (11/04/2024 CAVC Decision). The matter is now before the Board for review consistent with the JMPR.

Parties to the JMPR agreed the Board erred when it failed to remand pursuant to 38 C.F.R. § 20.802(a) for a correction of an error by the Agency of Original Jurisdiction (AOJ) in satisfying a regulatory duty. See 38 C.F.R. § 3.103(b)(1), (d)(1). 

Pursuant to 38 C.F.R. §3.103(d)(1), claimants are "entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter before VA issues notice of a decision on an initial or supplemental claim." 

Furthermore, VA must notify the veteran of "the right to a hearing on an issue involved in the claim as provided in [section 3.103(d)(1)]" as part of its notice "of any decision made by VA affecting the payment of benefits or the granting of relief." 38 C.F.R. § 3.103(b)(1). 

In this case, the parties agreed that the AOJ did not provide the Veteran with notice of his right to a pre-decisional hearing before the December 2019 rating decision on appeal or with the VA Form 21-526EZ that Appellant was required to use to submit his claims (08/19/2019	VA 21-526EZ, Fully Developed Claim (Compensation)). 

The Court directed the Board to remand the issue to the AOJ for correction of this error. 

In accordance with the above, and consideration of the Veteran's argument submitted through his representative (02/27/2025 Appellate Brief), the claim is returned to the AOJ for correction of the noted pre-decisional duty to assist error and readjudication of the claim.

The matter is REMANDED for the following action:

1. Determine if the duty to assist requires any additional evidentiary development for the Veteran's claim.

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2. Provide the Veteran notice of his right to a pre-decisional hearing before the RO.

3. After ensuring compliance of the terms of this remand, readjudicate the Veteran's claim.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Myers, Pamella

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.