06-16 657

Citation Nr: 1413868
Decision Date: 03/31/14 Archive Date: 04/10/14
DOCKET NO. 06-16 657 ) DATE
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to an evaluation in excess of 20 percent disabling, for the period beginning May 3, 2004, to prior to September 10, 2009, and in excess of 40 percent disabling, for the period beginning September 10, 2009, for residuals of a left forearm fracture.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Robert R. Watkins, General Attorney
INTRODUCTION
The Veteran served on active duty from January 1971 to March 1974.
This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a September 2004 decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In July 2008, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ). In October 2012, the Board issued a decision that partially granted the claim of entitlement to an evaluation in excess of 20 percent disabling, for the period beginning May 3, 2004, to prior to September 10, 2009, and in excess of 40 percent disabling, for the period beginning September 10, 2009, for residuals of a left forearm 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 2008 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 September 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 October 2012 Board decision that partially granted the claim of entitlement to an evaluation in excess of 20 percent disabling, for the period beginning May 3, 2004, to prior to September 10, 2009, and in excess of 40 percent disabling, for the period beginning September 10, 2009, for residuals of a left forearm fracture is vacated. The remainder of the October 2012 Board decision remains undisturbed.
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D. C. SPICKLER
Veterans Law Judge, Board of Veterans' Appeals