Citation Nr: A20009028 Decision Date: 05/20/20 Archive Date: 05/20/20 DOCKET NO. 190808-18861 DATE: May 20, 2020 ORDER The appeal is dismissed. FINDINGS OF FACT 1. In a final decision issued in January 2019, the Board granted an effective date of November 15, 2000, for the award of a 10 percent rating for mechanical low back pain and denied a rating in excess of 10 percent for such disability. 2. In a March 2019 rating decision that was issued in May 2019, the Agency of Original Jurisdiction (AOJ) implemented the Board’s January 2019 decision. CONCLUSIONS OF LAW 1. The January 2019 Board decision that granted an effective date of November 15, 2000, for the award of a 10 percent rating for mechanical low back pain and denied a rating in excess of 10 percent for such disability is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. § 20.1100 (2018). 2. As the claim on appeal had already been finally decided by the Board, there is no justiciable case or controversy as to the issue of entitlement to a rating in excess of 10 percent for mechanical low back pain. 38 U.S.C. §§ 7103, 7105; 38 C.F.R. §§ 19.21, 20.201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to June 1986. By way of background, in a January 2019 decision, the Board of Veterans’ Appeals (Board) granted an effective date of November 15, 2000, for the award of a 10 percent rating for mechanical low back pain and denied a rating in excess of 10 percent for such disability. In a March 2019 rating decision, which was issued in May 2019, a Department of Veterans Affairs (VA) Regional Office (RO) implemented the Board’s award. In August 2019, the Veteran timely appealed the rating decision to the Board under the modernized appeals system known as the Appeals Modernization Act (AMA), and requested review of the evidence considered by the AOJ and such received within the next 90 days. Entitlement to a rating in excess of 10 percent for mechanical low back pain. As noted previously, in a January 2019 decision, the Board granted an effective date of November 15, 2000, for the award of a 10 percent rating for mechanical low back pain and denied a rating in excess of 10 percent for such disability. In this regard, as the Veteran did not seek reconsideration of the Board’s January 2019 decision, did not appeal such decision to the United States Court of Appeals for Veterans Claims, and has not alleged clear and unmistakable error in it, it is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. § 20.1100 (2018). In the May 2019 rating decision, the AOJ implemented the Board’s January 2019 decision. Specifically, such decision advised the Veteran that the Board made a decision on his appeal on January 10, 2019, and such was implemented therein. Nonetheless, in August 2019, the Veteran appealed the claim of entitlement to a rating in excess of 10 percent for mechanical low back pain to the Board. However, such issue is not properly before the Board. In this regard, all questions in a matter subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. 38 U.S.C. § 7104(a). Final decisions on such appeals shall be made by the Board. Id. In addition, a notice of disagreement can only be filed with respect to “an adjudicative determination by the [AOJ]” or “a decision by the [AOJ].” 38 C.F.R. §§ 19.21, 20.201. While the Veteran filed a “notice of disagreement” as to the May 2019 rating decision, that decision was simply implementing the final Board decision. The Veteran cannot challenge the merits of the Board’s January 2019 decision by expressing disagreement with the AOJ’s implementing decision. Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (construction of regulation to permit review by RO of a Board decision to be avoided); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) (“an [AOJ] must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal”). Therefore, in January 2019, the Board issued a decision addressing the issue of entitlement to an increased rating for mechanical low back pain, which became final on the date it was mailed. 38 C.F.R. § 20.1100(a) (2018). While the AOJ implemented the Board’s decision in a May 2019 rating decision, the issue was already final and not subject to review by the AOJ. Therefore, as the claim on appeal had already been finally decided by the Board, there is no justiciable case or controversy as to the issue of entitlement to a rating in excess of 10 percent for mechanical low back pain. Moreover, in November 2019, the Veteran, through his representative, withdrew such claim. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.