Citation Nr: 20021789 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 14-07 855 DATE: March 27, 2020 ORDER An earlier effective date than March 6, 2018 for a grant of service connection for left eye diabetic retinopathy is dismissed. REMANDED Service connection for a right eye disability is remanded. FINDING OF FACT In a January 2019 Rating Decision, the regional office (RO) granted the issue of service connection for left eye diabetic retinopathy, assigning an effective date of March 6, 2018. This was a full grant of the benefit sought on appeal. Without a Notice of Disagreement (NOD), the RO added the issue of an earlier effective date than March 6, 2018 for a grant of service connection for left eye diabetic retinopathy to the Supplemental Statement of the Case (SSOC). CONCLUSION OF LAW The Board does not have jurisdiction to consider the merits of an earlier effective date than March 6. 2018 for a grant of service connection for left eye diabetic retinopathy. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.20, 19.21, 20.103, 20.104 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from May 1961 to August 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from July 2013 rating decision of the Department of Veterans Affairs (VA) RO. The Veteran testified before the undersigned at a Board hearing in February 2017. A transcript of the hearing is of record. This case is back from a November 2017 Board remand, directing additional examinations and opinions. After the remand, his appeals of service connection for a left eye disability and bilateral peripheral neuropathy disabilities were granted in a January 2019 rating decision. Because that decision represents a full grant of the benefit sought, these issues are not before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. An earlier effective date than March 6. 2018 for left eye diabetic retinopathy. VA must decide all questions of law and fact necessary to make a decision under a law that affects the provision of benefits by VA to veterans or the dependents or survivors of veterans. 38 U.S.C. § 511(a); 38 C.F.R. § 20.104(a). One of the threshold issues that the Board must address is the determination of appellate jurisdiction. 38 C.F.R. § 20.103. The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue. 38 C.F.R. § 20.104(b). Generally, the Board’s jurisdiction is grounded in an appeal having been filed on an issue, or issues, in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.104. If it does not have jurisdiction, the Board may dismiss that case or issue. 38 C.F.R. § 20.104(b). An appeal of a rating decision consists of a timely filed NOD in writing and, after a statement of the case has been furnished, a timely filed substantive appeal (e.g., a VA Form 9 or equivalent statement). 38 U.S.C. § 7105; 38 C.F.R. § 19.20. The absence of an NOD means that the Board does not have jurisdiction over the unadjudicated claim. Barnett v. Wilkie, 32 Vet. App. 83 (2019). In a January 2019 Rating Decision, the RO granted the issue of service connection for left eye diabetic retinopathy, assigning an effective date of March 6, 2018. That decision represented a full grant of the benefit sought on appeal and the issue should not have been considered remaining on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran did not file an NOD appealing the issue of an earlier effective date than March 6, 2018 for the grant of service connection for left eye diabetic retinopathy. Despite the fact that the Veteran did not appeal the decision, the RO added the issue of an earlier effective date than March 6, 2018 for a grant of service connection for left eye diabetic retinopathy to the SSOC. The Board cannot adjudicate cases without an NOD because an NOD is what confers jurisdiction to the Board. See Barnett v. Wilkie, 32 Vet. App. 83 (2019); see also Percy v. Shinseki, 23 Vet. App. 37 (2009). In light of these facts, the Veteran and his representative were sent a letter, pursuant to 38 C.F.R. § 20.104, informing him of the jurisdictional defects. The Veteran was further informed as to what constituted an appeal and a notice of disagreement. The letter noted that, while the issue of an earlier effective date was included in an SSOC, it was actually not properly on appeal before the Board. No response was received. Based on the foregoing, the Board concludes that it does not have jurisdiction to consider these issues and the appeals as to this issue is dismissed. REASONS FOR REMAND 1. Service connection for a right eye disability is remanded. The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully informed decision on the claim at this time because the examiner did not provide an opinion regarding the Veteran’s right eye pseudophakia as a postoperative residual of the Veteran’s cataracts. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Please note that this Veteran’s case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s right eye condition(s), including Veteran’s diagnosed pseudophakia, status post cataract removal surgery. Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s right eye condition(s) by diagnosis(es). Please provide a complete explanation (rationale) if the diagnosis of pseudophakia is not given. Please note that pseudophakia, status post cataract surgery is a ratable disability for which service connection may be established. (b.) For EACH of the diagnosed right eye conditions(s), is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current condition was proximately caused by or aggravated by Veteran’s service-connected diabetes mellitus? The examiner is advised that AGGRAVATION is defined as any increase in severity of the disability beyond its natural progression, regardless of its permanence or measurability. In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms are and when they began. If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training).   If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lambert 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.