13-30 186

• Court: Board of Veterans' Appeals
• Decided: November 9, 2018
• Docket: 13-30 186
• Status: Unpublished

Opinion

Citation Nr: 1829932 Decision Date: 11/09/18 Archive Date: 11/21/18

DOCKET NO. 13-30 186 ) DATE )

On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan

THE ISSUE

Entitlement to service connection for a traumatic brain injury (TBI), to include as secondary to service-connected posttraumatic stress disorder (PTSD).

REPRESENTATION

Veteran represented by: The American Legion

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

B. Whitelaw, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1969 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in September 2015. He attended an additional Board hearing before VLJ Kilcoyne in Detroit in July 2018.

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.

As explained above, the Veteran attended a Board hearing before the undersigned VLJ in September 2015 and with another VLJ in July 2018. Generally, VLJs who conduct hearings must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. 38 U.S.C. § 7102(a). Here, a decision was inadvertently issued and signed by only one of the VLJs who conducted a hearing regarding the issue of entitlement to service connection for a TBI. As the Veteran was entitled as a matter of law to a panel decision comprising both VLJs who heard testimony with respect to that issue, he has been denied due process of law. Therefore, on the Board's own motion, the August 2018 Board decision addressing the issue of entitlement to service connection for a TBI is vacated.

____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals