Citation Nr: 20030182 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 19-37 819 DATE: April 29, 2020 ORDER The appeal as to the issue of entitlement to service connection for a neck disability is dismissed. The appeal as to the issue of entitlement to service connection for bilateral upper extremity radiculopathy is dismissed. The appeal as to the issue of entitlement to an evaluation in excess of 10 percent for a healed fracture of left lateral malleolus with osteoarthritis is dismissed. FINDING OF FACT The Veteran did not file a substantive appeal, VA Form 9, to the Board as to the issues of entitlement to service connection for a neck disability, entitlement to service connection for bilateral upper extremity radiculopathy, or entitlement to an evaluation in excess of 10 percent for a healed fracture of the left lateral malleolus with osteoarthritis; thus, there is no case or controversy on which the Board must render a decision as to these issues. CONCLUSIONS OF LAW 1. As the Veteran did not appeal the issue of entitlement to service connection for a neck disability, there is no case or controversy on which the Board must render a decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. As the Veteran did not appeal the issue of entitlement to service connection for bilateral upper extremity radiculopathy, there is no case or controversy on which the Board must render a decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. As the Veteran did not appeal the issue of entitlement an evaluation in excess of 10 percent for a healed fracture of the left lateral malleolus with osteoarthritis, there is no case or controversy on which the Board must render a decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1980 to February 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a threshold matter, the Board notes that, the December 2015 rating decision, besides denying service connection for a neck disability and bilateral upper extremity radiculopathy, also granted an increased rating for a healed fracture of left lateral malleolus with osteoarthritis, from noncompensable to 10 percent, effective September 14, 2015, the date of the claim for increase. In a February 2016 informal notice of disagreement (NOD), the Veteran stated, in pertinent part, as to her left ankle, that she was requesting a rehearing due to clear and unmistakable error, specifically that she was requesting a 40 percent evaluation for her left ankle alone due to loss of range of motion, weakness and spurring that was present in 2015 and had continued to cause a change in her gait. Thereafter, a June 2016 rating decision, in pertinent part, found no revision was warranted in the evaluation of healed fracture of left lateral malleolus with osteoarthritis, and the Veteran submitted a formal June 2016 NOD. The resulting November 2019 Statement of the Case (SOC) framed the issue as whether the evaluation assigned for healed fracture of left lateral malleolus with osteoarthritis was clearly and unmistakably erroneous. In this regard, the Board notes that the Veteran has not advanced any theories asserting clear and unmistakable error in a prior final rating decision, as she indicated disagreement with the current rating assigned within the appeal period of the December 2015 rating decision. Even when appellants are pro se and motions for revision based on clear and unmistakable error are to be liberally read, they nevertheless remain attacks on the finality of a decision and must be pled with a degree of specificity. See Bowen v. Shinseki, 25 Vet. App. 250, 255 (2012). Here, as discussed above, in the February 2016 informal NOD, the Veteran reported she was requesting a higher evaluation for her left ankle due to specific symptoms identified within the applicable appeal period. Thus, this issue is best characterized as increased rating claim as captioned above. In a September 2019 statement, the Veteran requested copies of certain documents in her claims file, and while this request has been acknowledged, such has not yet been fulfilled. However, no further action is required as to this issue, or any other due process deficiency, if such exists, given that these appeals are being dismissed as there is no case or controversy on which the Board must render a decision. 1. Entitlement to service connection for a neck disability 2. Entitlement to service connection for bilateral upper extremity radiculopathy 3. Entitlement an evaluation in excess of 10 percent for a healed fracture of left lateral malleolus with osteoarthritis Under 38 U.S.C. § 7105 , the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, as noted above, a December 2015 rating decision denied service connection for a neck disability, denied service connection for right and left upper extremity radiculopathy, and granted an increased rating for a healed fracture of left lateral malleolus with osteoarthritis, from noncompensable to 10 percent, effective September 14, 2015, the date of the claim for increase. Following receipt of a formal NOD in June 2016, a November 2019 SOC was issued for the claims of service connection for a neck disability, service connection for right and left upper extremity radiculopathy, as well as for claims regarding the Veteran’s disagreement with her initial ratings assigned for patellofemoral impingement and synovial hypertrophy effusion of the left knee, and for degenerative joint disease and degenerative disc disease of the lumbar spine. Thereafter, in a statement received by VA on December 12, 2019, the Veteran described difficulties with the processing of her claims and explicitly stated, in part, that she sent the Board no request for review of her claim. Thereafter, in December 2019, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) outlining her disagreement with her initial ratings assigned for patellofemoral impingement and synovial hypertrophy effusion of the left knee, and for degenerative joint disease and degenerative disc disease of the lumbar spine, which opted these increased rating claims into the Appeals Modernization Act (AMA) review system. 38 C.F.R. § 19.2. This was accepted by the Board and these claims have been docketed as AMA appeals, thus they are not for consideration in this decision. However, there is no substantive appeal, VA Form 9, as to the issues of entitlement to service connection for a neck disability, entitlement to service connection for right and left upper extremity radiculopathy, nor entitlement an evaluation in excess of 10 percent for a healed fracture of the left lateral malleolus with osteoarthritis. Additionally, as noted above, in her statement received by VA on December 12, 2019, the Veteran specifically stated that she sent the Board no request for review of her claim. Although the RO indicated, in a December 2019 Certification of Appeal, VA Form 8, that a substantive appeal was received by VA on December 12, 2019, the Board does not consider the Veteran’s statement, the only document received by VA on December 12, 2019, to be a substantive appeal. Further, the Board notes that VA amended 38 C.F.R. § 20.202 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, effective March 24, 2015 and this amended regulation applies to the Veteran’s claims addressed herein. As the Veteran did not perfect an appeal of the issue of entitlement to service connection for a neck disability, entitlement to service connection for right and left upper extremity radiculopathy, nor entitlement to an evaluation in excess of 10 percent for a healed fracture of left lateral malleolus with osteoarthritis, via submission of a VA Form 9 to the Board, there is no case or controversy regarding any of these issues. As there are no remaining allegations of error of fact or law for appellate consideration, the appeal as to these issues is dismissed. 38 U.S.C. § 7105 (d)(5). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.