Citation Nr: 1413877
Decision Date: 03/31/14 Archive Date: 04/10/14

DOCKET NO. 07-09 955 ) DATE
)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUES

1. Entitlement to an initial evaluation in excess of 10 percent for a service-connected chronic lumbar strain.

2. Entitlement to an initial evaluation in excess of 10 percent for service-connected residuals of a right ankle fracture.

REPRESENTATION

Veteran represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Michael L. Marcum, General Attorney

INTRODUCTION

The Veteran served on active duty from August 1983 to August 2003.

This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision issued by the VA Regional Office in Washington, DC. Jurisdiction resides with the RO in Roanoke, Virginia (the RO). In July 2009, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ). In June 2012, the Board issued a decision that denied the claims of entitlement to an initial evaluation in excess of 10 percent for chronic lumbar strain and entitlement to an initial evaluation in excess of 10 percent for residuals of a right ankle fracture.

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.

38 U.S.C.A. § 7104

(a) (West 2002);

38 C.F.R. § 20.904

 (2013).    

In September 2013, pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs,

725 F.3d 1312

 (Fed. Cir. 2013), the Board sent the Veteran a letter notifying him of an opportunity to receive a new decision from the Board that would correct any potential due process error relating to the duties of the VLJ that conducted the July 2009 hearing.  See Bryant v. Shinseki,

23 Vet. App. 488

 (2010) (holding that the requirements of

38 C.F.R. § 3.103

(c)(2) apply to a hearing before the Board and that a VLJ has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked).  In November 2013, the Veteran responded that he wished to have the prior decision vacated and a new one issued in its place.

Accordingly, the portion of the June 2012 Board decision that denied entitlement to an initial evaluation in excess of 10 percent for chronic lumbar strain and entitlement to an initial evaluation in excess of 10 percent for residuals of a right ankle fracture is vacated.  The remainder of the June 2012 Board decision remains undisturbed. 




	                        ____________________________________________
	D. C. SPICKLER
	Veterans Law Judge, Board of Veterans' Appeals