Citation Nr: 20008355 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 11-17 868 DATE: January 31, 2020 ORDER Reopening of entitlement to service connection for a low back condition (previously adjudicated as bilateral spondylosis L-5 with spondylolisthesis) is dismissed. Reopening of entitlement to service connection for a respiratory disability (previously adjudicated as respiratory problems/pneumonia x2) is dismissed. FINDINGS OF FACT 1. The Veteran never appealed the low back issue to the Board and the Board erred in taking jurisdiction over it in the September 2017 Board Decision; there is no case or controversy presently before the Board regarding this issue. 2. The Veteran never appealed the respiratory disability issue to the Board and the Board erred in taking jurisdiction over it in the September 2017 Board Decision; there is no case or controversy presently before the Board regarding this issue. CONCLUSIONS OF LAW 1. There being no justiciable case or controversy, the appeal for reopening of entitlement to service connection for a low back condition is dismissed. 38 U.S.C. § 7105 (2012). 2. There being no justiciable case or controversy, the appeal for reopening of entitlement to service connection for a respiratory disability is dismissed. 38 U.S.C. § 7105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from January 1968 to December 1970. In a January 1973 Rating Decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for a low back condition; a January 1973 notification letter containing appeal rights was mailed to the Veteran, but he did not timely appeal and the January 1973 Rating Decision became final. In a March 2010 Rating Decision, the AOJ denied: (a) reopening of entitlement to service connection for a low back condition; and (b) entitlement to service connection for a respiratory disability. A March 2010 notification letter containing appeal rights was mailed to the Veteran and he timely appealed through a June 2010 Notice of Disagreement (NOD); the AOJ issued a May 2011 Statement of the Case (SOC), but the Veteran did not timely appeal and the March 2010 Rating Decision became final. In a September 2017 Board Decision, the Board erred by taking jurisdiction of the issues herein (because the Veteran never appealed them to the Board) and by remanding these issues for the AOJ to issue a SOC in the first instance (because the AOJ had already issued the May 2011 SOC). In a March 2018 VA Form 21-526EZ, the Veteran requested entitlement to service connection for chronic obstructive pulmonary disease (COPD) and entitlement to service connection for chronic bronchial pneumonia. In a June 2018 Rating Decision, the AOJ denied entitlement to service connection for COPD; a June 2018 notification letter containing appeal rights was mailed to the Veteran, but he did not timely appeal and the June 2018 Rating Decision became final. In a December 2019 Appeals Review/Deferral and Correspondence, the AOJ returned the appeal to the Board and noted that: (a) the Veteran never submitted a VA Form 9 in connection with these issues; and (b) the AOJ already issued the May 2011 SOC (which was not timely appealed). 1. Reopening of entitlement to service connection for a low back condition Based on the procedural history above, the Board finds that the Veteran never appealed the issues herein to the Board, the Board erred in taking jurisdiction over them in the September 2017 Board Decision, and there is no case or controversy presently before the Board regarding these issues. As delineated above, the Veteran was properly notified of his denials and how to timely appeal them. Further, the Veteran submitted VA Form 9s for other issues, but never for the two issues herein; thus, the Veteran had the opportunity to appeal the issues herein to the Board, but never did. See June 2011, August 2013, and December 2016 VA Form 9s (appealing several issues to the Board, but never the two issues herein). As such, because the Veteran never appealed the issues herein to the Board, and seemingly never intended to do so despite having the opportunity, there is no justiciable case or controversy presently before the Board and the appeal must be dismissed. 38 U.S.C. § 7105. 2. Reopening of entitlement to service connection for a respiratory disability This issue is dismissed for the same reasons and bases described above. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.