Citation Nr: 20054741 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 20-28 487 DATE: August 18, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for muscle atrophy of the right foot, ankle, and calf is dismissed. Entitlement to an effective date earlier than January 26, 2017, for the award of service connection for muscle atrophy of the right foot, ankle, and calf is dismissed. FINDING OF FACT In a June 2020 rating decision, the RO severed the grant of service connection for residuals, arthroscopy, right knee, with muscle atrophy of the foot, ankle, effective January 26, 2017. CONCLUSION OF LAW There being no justiciable case or controversy, the Veteran’s appeal is dismissed. 38 U.S.C. § 7105 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in U.S. Army from January 1975 to April 1987. Procedurally, the Board notes that in a February 2017 rating decision, the Veteran’s residuals, arthroscopy, right knee, with muscle atrophy of the anterior thigh muscles which was rated as 30 percent disabling, was increased to 40 percent disabling, effective January 26, 2017. The RO also granted a separate evaluation for residuals, arthroscopy, right knee, with muscle atrophy of the foot, ankle and calf. The Veteran was granted an evaluation of 30 percent disabling, effective January 26, 2017. In September 2017, the Veteran submitted a notice of disagreement (NOD) with the January 2017 rating decision. He disagreed with the initial evaluation and effective date assigned for the grant of service connection for residuals, arthroscopy, right knee, with muscle atrophy of the foot, ankle and calf. In April 2018, the Board remanded the issue of entitlement to a disability rating in excess of 30 percent for muscle atrophy of the right foot, ankle, and calf; and to an effective date earlier than January 26, 2017. It was instructed that the RO should furnish the Veteran with a Statement of the Case pertaining to the issues of entitlement to a disability rating in excess of 30 percent for muscle atrophy of the right foot, ankle, and calf; and to an effective date earlier than January 26, 2017, for the award of service connection for muscle atrophy of the right foot, ankle, and calf. In March 2020, the RO contacted the Veteran and expressed that clear and unmistakable error had been made in relation to his claims and that they proposed to reduce his rating from 40 percent to 30 percent for his residuals, arthroscopy, right knee, with muscle atrophy of the anterior thigh muscle. They also informed him of the proposal to sever the grant of service connection for residuals, arthroscopy, right knee, with muscle atrophy of the foot, ankle. In the June 2020 Statement of the Case, the RO addressed the issue of “entitlement to an evaluation in excess of a 30 percent and a 10 percent for residuals, arthroscopy, right knee, with muscle atrophy of the anterior thigh muscles and entitlement to an earlier effective day prior to January 26, 2017 for increased evaluations.” In a June 2020 rating decision, however, the RO reduced the Veteran’s rating from 40 percent to 30 percent for his residuals, arthroscopy, right knee, with muscle atrophy of the anterior thigh muscle. The grant of service connection for residuals, arthroscopy, right knee, with muscle atrophy of the foot, ankle, effective January 26, 2017 was also severed at that time. In July 2020, the Veteran submitted a timely VA Form 9 Substantive Appeal. In this case, the Veteran submitted a notice of disagreement to the evaluation and effective date assigned for the grant of service connection for residuals, arthroscopy, right knee, with muscle atrophy of the foot, ankle and calf. Thereafter, he perfected an appeal as to these issues. The Veteran did not submit a NOD within one year of the January 2017 rating decision with respect to the issue of entitlement to a rating higher than 30 percent for residuals, arthroscopy, right knee, with muscle atrophy of the anterior thigh muscles. Although the RO addressed this issue in the June 2020 Statement of the Case, the Veteran has not submitted a NOD on this matter and thus the Board does not have jurisdiction to address this matter. Here, the Veteran has perfected an appeal as to the issues of entitlement to an initial rating higher 30 percent for residuals, arthroscopy, right knee, with muscle atrophy of the foot, ankle and calf, and entitlement to an effective date earlier than January 26, 2017 for the grant of service connection for residuals, arthroscopy, right knee, with muscle atrophy of the foot, ankle and calf. As noted, however, in a June 2020 rating decision, the RO severed the grant of service connection for residuals, arthroscopy, right knee, with muscle atrophy of the foot, ankle, effective January 26, 2017. The provisions of 38 C.F.R. § 3.400(o)(1) instruct that a “retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.” This is mandatory language removing any jurisdiction by the Board is consideration of additional compensation for any time period. As such, the Board need not decide whether the RO assigned the correct effective date of termination. As entitlement to service connection for residuals, arthroscopy, right knee, with muscle atrophy of the foot, ankle benefits has been severed, there remains no case or controversy for the Board to decide and the appeal is moot. Accordingly, the case is dismissed. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.