Citation Nr: 1805243 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-15 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased rating in excess of 30 percent for diabetic nephropathy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran had active service from September 1988 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Chicago, Illinois. In April 2010, the Veteran filed a claim for an increased rating for diabetic nephropathy, evaluated as 30 percent disabling. In the September 2010 rating decision, the RO continued the Veteran's disability rating of 30 percent. The Veteran filed a timely notice of disagreement in October 2010 and perfected his appeal in April 2014 with regard to this issue. An April 2014 RO deferred rating decision reflects that the Veteran notified the representative that he wished to withdraw all appeals. The representative was informed that if the Veteran wishes to drop all appeals, he must do so in writing. However, the Veteran has not yet submitted a written request to withdraw his appeal. Moreover, the representative has subsequently submitted a memorandum in lieu of VA Form 9, regarding the issue on the Statement of the Case issued in April 2014. Therefore, the issue on appeal is properly on appeal before the Board. FINDINGS OF FACT 1. The RO, in September 2013, severed service connection for diabetic nephropathy, effective December 1, 2013, and the Veteran did not appeal this determination within one year of being notified. 2. There is no legal basis for a retroactive increase after severance of service connection for diabetic nephropathy. CONCLUSIONS OF LAW 1. The September 2013 rating decision that severed service connection for diabetic nephropathy is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The criteria for entitlement to an increased rating in excess of 30 percent for diabetic nephropathy are not met. 38 U.S.C. § 501 (2012); 38 C.F.R. §§ 3.105, 3.400(o)(1) (2017); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As the law, and not the evidence, is dispositive, VCAA notice is not applicable in this case. Mason v. Principi, 16 Vet. App. 129, 132 (2002). In this case, the RO granted service connection for diabetic nephropathy, and assigned a noncompensable disability rating effective November 30, 2005. The RO increased the rating for diabetic nephropathy from noncompensable to 30 percent effective November 30, 2005, in a September 2009 rating decision. In April 2010, the Veteran filed a claim for an increased rating for diabetic nephropathy, evaluated as 30 percent disabling. In the September 2010 rating decision, the RO continued the Veteran's disability rating of 30 percent. During the course of this appeal, in July 2013, the RO found that service connection for diabetic nephropathy (claimed as kidney disorder) was clearly and erroneously granted on a direct basis when the evidence of record did not show diabetes mellitus was diagnosed during his military service. The RO proposed to sever service connection for diabetic nephropathy. The RO notified the Veteran of the proposed severance of service connection on July 3, 2013 and advised him that he had 60 days to submit argument in support of continued service connection. The Veteran disagreed with the proposal and requested a pre-determination hearing in August 2013. In a November 2013 letter, the RO notified the Veteran that his requested hearing was scheduled in December 2013, but the Veteran requested his hearing be rescheduled. In a March 2014 letter, the RO notified the Veteran that his hearing was rescheduled in April 2014. However, an April 2014 RO deferred rating decision reflects that the RO contacted the Veteran's representative in regards to the Veteran's hearing scheduled in April 2014, and the Veteran notified the representative that he wished to withdraw his request. No further requests for hearings are of record. As such, the Board finds that the Veteran's hearing request is withdrawn. Thus, the RO complied with the procedural requirements for severance provided under 38 38 C.F.R. § 3.105. In a September 2013 rating decision, the RO implemented the proposed severance of service connection for diabetic nephropathy effective December 1, 2013. The Veteran did not file a timely appeal as to the September 2013 rating decision. Accordingly, the Board finds that the September 2013 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). As service connection for diabetic nephropathy was properly severed, effective in December 1, 2013, under 38 C.F.R. § 3.400(o), a retroactive increase will not be awarded after basic entitlement has been terminated, such as by severance of service connection. The law clearly is dispositive as it prohibits a retroactive increase once basic entitlement has been terminated. Accordingly, the Board finds that the Veteran lacks entitlement under the law for the claim for increase for diabetic nephropathy, in which service connection for the disability has been properly severed, and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) ORDER As a matter of law, entitlement to an increased rating in excess of 30 percent for diabetic nephropathy is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs