14-18 296 ( 2018 )

Citation Nr: 1829931
Decision Date: 11/09/18 Archive Date: 11/21/18
DOCKET NO. 14-18 296 ) DATE
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to an effective date prior to August 11, 2010 for the award of service connection for asthma.
REPRESENTATION
Appellant represented by: The American Legion
INTRODUCTION
The Veteran served on active duty from December 1975 to June 1981.
This matter was on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board issued a decision that, in pertinent part, denied the matter seeking an earlier effective date for the award of service connection for asthma.
ORDER TO VACATE
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); 38 C.F.R. § 20.904.
An August 2018 Board decision in part denied entitlement to an effective date earlier than August 11, 2010 for the award of service connection for asthma. Subsequent to issuance of the decision, the Board became aware that the Veteran had requested to appear at a videoconference hearing before the Board on this issue in her May 2014 VA Form 9, Appeal to the Board of Veterans' Appeals. As the August 2018 Board decision was issued without providing the Veteran an opportunity to appear for a hearing before the Board, the Veteran was denied her due process right to a hearing. As such, the Board is, on its own motion, vacating the decision as it applies to that issue. A decision on the merits of the earlier effective date claim for the award of service connection for asthma will be issued at a later date, after the transcript of the hearing conducted in October 2018 has been associated with the Veteran's claims file.
The Board notes for clarity that the record reflects the Veteran did not request a hearing on the other issue decided in the August 2018 Board decision regarding her functional bowel disorder. Additionally, the issue seeking an increased rating for asthma was remanded for further action. Thus, there is currently no indication that she was denied due process of law for these issues and the August 2018 Board decision remains intact and is not vacated as it pertains to those other issues.
Accordingly, the August 2018 Board decision is vacated only as to the denial of the issue of entitlement to an effective date prior to August 11, 2010 for the award of service connection for asthma.
____________________________________________
M. SORISIO
Veterans Law Judge
Board of Veterans' Appeals