05-01 492

Citation Nr: 1413853
Decision Date: 03/31/14 Archive Date: 04/10/14
DOCKET NO. 05-01 492 ) DATE
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to an increased rating for chronic vertigo, currently rated as 10 percent disabling.
REPRESENTATION
Veteran represented by: Ellen M. Donati, Esq.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Robert R. Watkins, General Attorney
INTRODUCTION
The Veteran served on active duty from September 1972 to August 1976 and from February 1978 to December 1990.
This matter was originally before the Board of Veterans' Appeals (Board) on appeal from an August 2004 decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In December 2007, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ). In August 2011, the Board issued a decision that denied the claim of entitlement to an increased rating for chronic vertigo, currently rated as 10 percent disabling.
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 December 2007 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 August 2011 Board decision is vacated.
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D. C. SPICKLER
Veterans Law Judge, Board of Veterans' Appeals