Citation Nr: 1603576	
Decision Date: 02/02/16    Archive Date: 02/11/16

DOCKET NO.  03-15 496	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to a rating in excess of 10 percent for residuals of a shell fragment wound to the left (minor) hand, Muscle Group IX, prior to December 9, 2001, and in excess of 20 percent since. 


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel



INTRODUCTION

The Veteran served on active duty from July 1965 to May 1969.  He testified at a November 2003 Travel Board and a September 2004 videoconference hearing.  The hearing transcripts are of record.  This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Service connection for residuals for a shell fragment wound to the left hand was severed effective June 30, 2014, due to fraud, and the claim for an increased rating for that disability lacks legal merit. 


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for residuals of a shell fragment wound to the left (minor) hand, Muscle Group IX, prior to December 9, 2001, and in excess of 20 percent since have not been met as a matter of law.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. § 3.400(o)(1) (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Pursuant to an April 2014 rating decision, service connection for residuals for a shell fragment wound to the left (minor) hand was severed effective June 30, 2014, due to fraud.  The Veteran did not appeal the April 2014 severance of service connection; therefore, that decision is final.

VA regulations provide that a retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service-connection.  38 C.F.R. § 3.400(o)(1) (2015).  As service connection for a shell fragment wound to the left hand, Muscle Group IX, has been terminated, there is no legal entitlement to the payment of a retroactive increase or additional benefits for such disability, and the appeal is denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). 

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015).  The provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  

As the appeal is being denied as a matter of law, no further action is necessary under the statutory and regulatory duties to notify and assist, and the Board finds that any associated due process concerns, to include in regard to affording the Veteran an opportunity for new hearing, are rendered moot.  


ORDER

A rating in excess of 10 percent for residuals of a shell fragment wound to the left (minor) hand, Muscle Group IX, prior to December 9, 2001, and in excess of 20 percent since is denied as a matter of law.  



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs