Citation Nr: 1322905 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-02 524 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to a disability greater than 40 percent for lumbar spine disability, to include degenerative disc disease (DDD). 2. Entitlement to service connection for bilateral leg disabilities, to include radiculopathy, claimed as secondary to service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from May 1981 to May 1984. Thereafter, the Veteran service in the Naval Reserves, with various periods of inactive duty for training as well as active duty for training until October 2000. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2006 rating decision in which the RO denied service connection for tinnitus; an August 2008 rating decision in which the RO denied service connection for bilateral hearing loss; and a December 2008 rating decision in which the RO, confirmed and continued a 40 percent rating for lumbar spine disability, as well as denied service connection for bilateral leg disability, claimed as secondary to the service-connected lumbar spine disability. In September 2011, the Board denied the Veteran's claim for a disability rating greater than 40 percent for lumbar spine disability, as well as denied the claim for service connection for bilateral leg disabilities, to include radiculopathy claimed as secondary to service-connected lumbar spine disability. At that time, the Board remanded the claims for service connection for bilateral hearing loss and tinnitus to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. In a July 2012 rating decision, the RO awarded the Veteran service connection for bilateral hearing loss and tinnitus. Consequently, those claims have not been returned to the Board. FINDINGS OF FACT 1. On September 29, 2011, the Board issued a decision denying the Veteran's claim for a disability rating greater than 40 percent for lumbar spine disability, to include DDD. 2. On September 29, 2011, the Board issued a decision denying the Veteran's claim for service connection for bilateral leg disabilities, to include radiulopathy, claimed as secondary to service-connected lumbar spine disability. 3. The Veteran has not submitted any statement or other communication expressing his intent to request reconsideration of the Board's September 2011 decision; or to appeal the decision to the Court of Appeals for Veterans Claims (Court). CONCLUSION OF LAW Because the Board's September 2011 decision constitutes a final denial of the previously-appealed claims for a disability rating greater than 40 percent for lumbar spine disability, to include DDD, and for service connection for bilateral leg disabilities, to include radiulopathy, claimed as secondary to service-connected lumbar spine disability, there remains no case or controversy over these issues concerning the provision of benefits by VA over which the Board may exercise jurisdiction. 38 U.S.C.A. §§ 511, 5107, 7104 (West 2002); 38 C.F.R. §§ 19.4, 19.5, 20.101, 20.1100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). Generally, the Board's jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely substantive appeal. 38 C.F.R. § 7105; 38 C.F.R. § 21.200. By way of background, the Board notes that, in September 2008, the Veteran filed a claim essentially seeking an increased rating for his service-connected low back disability and separate ratings for neurological manifestations of lumbar spine disability affecting both legs. The RO denied these claims in a December 2008 rating decision. The Veteran sought "reconsideration" of the claims in February 2009. The RO treated the February 2009 statement as a new claim, and denied the issues again in an April 2009 rating decision. The Veteran filed a VA Form 9, Appeal to the Board of Veterans Appeals, in May 2009. In the September 2011 remand, the Board determined that, despite the wording of the Veteran's February 2009 statement, he clearly intended to appeal the December 2008 denial of his increased rating and service connection claims for bilateral leg disabilities. Accordingly, the Board construed the April 2009 rating decision as a "Statement of the Case," followed by the filing of the May 2009 VA Form 9 as a substantive appeal.. In September 2011, the Board denied the Veteran's claim for an increased rating for lumbar spine disability, and the claims for service connection for bilateral leg disabilities. At that time, the Board remanded to the RO, via the AMC, the claims for service connection for bilateral hearing loss and tinnitus. Inexplicably, following the Board's decision, in October 2011 and March 2012, the RO issued supplemental statements of the case addressing the issues that the Board denied in September 2011. In a July 2012 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus. As indicated, the RO has returned to the Board the claim for a disability rating greater than 40 percent for lumbar spine disability, to include DDD, as well as the claim for service connection for bilateral leg disabilities, to include radiculopathy, claimed as secondary to service-connected lumbar spine disability-despite the fact that the Board had already denied these claims in its September 2011 decision. Unless the Chairman orders reconsideration or one of the other exceptions to finality applies-to include appeal to the Court-all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. There is no indication that the Veteran requested a reconsideration of the decision, or that he has communicated an intent to appeal such decision to the Court. Indeed, it is unclear why, given the noted facts the RO issued supplemental statements of the case addressing the claims involving the lumbar spine and bilateral legs in October 2011 and March 2012; curiously, these documents also include no reference to the prior Board decision. Thus, it appears that the above-referenced supplemental statements of the case were issued, and these matters returned to the Board, in error. As a final point, the Board notes that the Veteran is certainly free to request reopening of the previously denied claims , and that such claims may be reopened upon the submission of new and material evidence (see 38 U.S.C.A. § 5108 (West 2002) and 38 C.F.R. § 3,156 (2012), However, adjudication of such a matter, and denial of either the request to reopen or the claim(s) on the merits, followed by the filing of a perfected appeal is required for any future exercise of the Board's jurisdiction over these fundamental matters. As there remain no allegations of errors of fact or law for appellate consideration with respect to that above-noted matters, or any other ancillary issue, the Board does not have jurisdiction to review the appeal and it must be dismissed. ORDER The appeal is dismissed. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs