Citation Nr: 20006324
Decision Date: 01/28/20	Archive Date: 01/24/20

DOCKET NO. 17-19 911
DATE: January 28, 2020

ORDER

The appeal as to whether a Decision Review Officer (DRO) review election was timely received in regard to the December 2013 notice of disagreement is dismissed.

FINDINGS OF FACT

1. The December 2013 notice of disagreement, which is the basis of the Veteran’s election of a DRO review, pertained to the issue of entitlement to service connection for polymyositis, which was initially denied in a June 2013 rating decision. 

2. A June 2017 rating decision granted service connection for polymyositis of various joints, resulting in a combined disability rating of 100 percent, effective February 13, 2012, the date of receipt of the Veteran’s original claim.

CONCLUSION OF LAW

As there is no remaining justiciable case or controversy with respect to the issue of whether a DRO review election was timely received in regard to the December 2013 notice of disagreement, the Veterans appeal as to this issue is moot. 38 U.S.C. § 7105; 38 C.F.R. § 20.104.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from April 1972 to March 1974. 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a decision issued in July 2014 by a Department of Veterans Affairs (VA) Regional Office (RO), which determined that the Veteran’s election of a DRO review election was untimely. 

Whether a DRO review election was timely received in regard to the December 2013 notice of disagreement.

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See e.g., 38 C.F.R. § 20.104.  

In essence, a “case or controversy” involving a pending adverse determination to which the appellant has taken exception no longer exists. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). 

In the instant case, the December 2013 notice of disagreement, which is the basis of the Veteran’s election of a DRO review, pertained to the issue of entitlement to service connection for polymyositis, which was initially denied in a June 2013 rating decision. 

Subsequently, a June 2017 rating decision granted service connection for polymyositis of various joints, resulting in a combined disability rating of 100 percent, effective February 13, 2012, the date of receipt of the Veteran’s original claim. 

Consequently, as the Veteran’s claim has already been granted in full, there is no longer a pending adverse determination for the Board to adjudicate.  

Thus, as there is no remaining justiciable case or controversy with respect to the issue of whether a DRO review election was timely received in regard to the December 2013 notice of disagreement, the Veteran’s appeal as to this issue is moot and must be dismissed. 

 

A. JAEGER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Clark, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.