Citation Nr: 1808731	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  10-48 591	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to a rating in excess of 30% for post-traumatic stress disorder (PTSD) prior to April 10, 2013, a rating in excess of 50% from April 10, 2013 to February 16, 2017, and a rating in excess of 70% since February 17, 2017. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Kutrolli, Associate Counsel





INTRODUCTION

The Veteran served honorably in the United States Army from December 1965 to December 1967. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  

The Veteran initially requested a video-conference hearing in his VA Form 9 dated December 2010.  He withdrew the hearing request in July 2011.  Therefore, the Board finds the hearing request was withdrawn.  


FINDING OF FACT

There is no justiciable case or controversy for active consideration by the Board as to the issue of entitlement to an increased rating for PTSD. 


CONCLUSION OF LAW

There remains no case or controversy as to the issue of entitlement to an increased rating for PTSD. U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.101 (2017)


REASONS AND BASES FOR FINDING AND CONCLUSION

In this case, neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist.  When an appellant fails to raise procedural arguments, the Board is not required to search the record and address them.  Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 

"On a claim for an increased rating, the [appellant] will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  However, "where . . . the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative").  Id. at 39.  

Here, on January 19, 2018, the Veteran's representative expressly indicated that the matter on appeal was resolved to the satisfaction of the Veteran.  See Appellant Brief ("The American Legion believes the issue on appeal, Increased Rating for   Post-Traumatic Stress Disorder has been resolved.").  This statement followed a series of favorable rating decisions in which the Veteran was granted staged ratings in excess of 30 percent.  Notably, an August 2017 rating decision continued the 30 percent rating through April 9, 2017, and assigned a 70 percent rating thereafter.  A September 2017 rating decision subsequently increased the Veteran's rating to 50% from April 10, 2013 to April 9, 2017, and continued the 70 percent rating from April 10, 2017.  Then, in November 2017, the RO assigned February 17, 2017, as an earlier effective for the 70 percent rating. 

Judicial precedent dictates that when there is no case or controversy, or when a once live case or controversy becomes moot, the Board lacks jurisdiction.  See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992).   Given the Veteran's statement, there is no justiciable case or controversy for active consideration by the RO or the Board on the issue of entitlement to an increased rating for PTSD.  Accordingly, this appeal is dismissed.  







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ORDER

The appeal of entitlement to an increased rating for PTSD is dismissed. 



____________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs