Citation Nr: 20076092 Decision Date: 11/30/20 Archive Date: 11/30/20 DOCKET NO. 18-26 699 DATE: November 30, 2020 ORDER Entitlement to an increased initial evaluation for service-connected limitation of abduction of the right hip is dismissed. Entitlement to an increased initial evaluation for service-connected limitation of abduction of the left hip is dismissed. Entitlement to an increased initial evaluation for service-connected limitation of flexion of the right hip is dismissed. Entitlement to an increased initial evaluation for service-connected limitation of flexion of the left hip is dismissed. FINDINGS OF FACT 1. In January 2018, the Board of Veteran’s Appeals (Board) remanded several appealed issues, including those currently before the Board, to the Agency of Original Jurisdiction (AOJ) for additional development. 2. In April 2018, the AOJ erroneously provided the Veteran with a Statement of the Case (SOC) that readjudicated the issues on appeal, resulting in the creation of a separate appeal stream comprised of issues that were in remand status. 3. In May 2018, the Veteran perfected an appeal to the Board regarding the duplicative appeal stream, and such was subsequently certified to the Board. 4. In an April 2019 statement, the Veteran’s private attorney withdrew the Veteran’s appeal regarding all issues certified to the Board. 5. In a June 2019 decision, the Board dismissed the appealed issues that were certified to the Board, as per the Veteran’s wishes, including the issues currently before the Board. 6. Neither the Veteran nor his private attorney has expressed wishes to withdraw the April 2019 appeal withdrawal or otherwise reactivate the appeal regarding the issues currently before the Board. CONCLUSION OF LAW 1. As a final June 2019 Board decision has dismissed the appealed issues currently before the Board, the matter is res judicata, and the Board has no jurisdiction to further consider an appeal in the matter. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.110. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1988 to August 1992. This matter comes to the Board from June 2012 and July 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the AOJ. The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran presented oral testimony in support of his appeal at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) at the RO in May 2016. A transcript of the May 2016 hearing is associated with the Veteran’s file. The remaining pertinent facts concerning the extensive procedural of the Veteran’s appeal will be recounted below. 1. Entitlement to an increased initial evaluation for service-connected limitation of abduction of the right hip is dismissed. 2. Entitlement to an increased initial evaluation for service-connected limitation of abduction of the left hip is dismissed. 3. Entitlement to an increased initial evaluation for service-connected limitation of flexion of the right hip is dismissed. 4. Entitlement to an increased initial evaluation for service-connected limitation of flexion of the left hip is dismissed. In January 2018, the Board remanded several appealed issues, including those currently before the Board, to the AOJ for additional development. Due to an administrative error, the AOJ provided the Veteran with an SOC that readjudicated the issues currently on appeal, resulting in the creation of a separate appeal stream comprised of issues that were in remand status. In May 2018, the Veteran perfected an appeal to the Board regarding the duplicative appeal stream, and such was subsequently certified to the Board. In an April 2019 statement, the Veteran’s private attorney withdrew the Veteran’s appeal regarding all issues certified to the Board. In a June 2019 decision, the Board dismissed the appealed issues that were certified to the Board, as per the Veteran’s wishes, including the issues currently before the Board. The duplicative appeal stream, comprised of the issues currently before the Board, was subsequently certified to the Board by the AOJ. With few exceptions, Board decisions are final when issued. 38 C.F.R. § 20.1100. As such, the June 2019 Board decision that dismissed the issues currently before the Board became final on June 6, 2019, its date of issuance. Id. The Board's June 2019 decision was not appealed to the Court. As noted by the Federal Circuit in Cook v. Principi, “principles of finality and res judicata apply to agency decisions that have not been appealed and have become final.” Cook v. Principi, 318 F.3d 1334, 1336 (2002). In DiCarlo v. Nicholson, 20 Vet. App. 52, 55-56 (2006), the Court explained the concept of res judicata as follows: The concept of res judicata requires that there be only one valid decision on any adjudicated issue or claim; that decision is the only appropriate target for any future collateral attack on that issue or claim. Cf. Hazan v. Gober, 10 Vet. App. 511, 520-21 (1997) (holding that where an unappealed final decision is determinative of an issue, an appellant is collaterally estopped from “relitigating the same issue based upon the same evidence, albeit for a different purpose”). Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded. Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed.Cir.2005) (“’The purpose of the rule of finality is to preclude repetitive and belated readjudications of veterans’ benefits claims.'" Cook, 318 F.3d at 1339; Bissonnette, 18 Vet. App. at 112 (“In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three.”); see also Hazan, supra. There are two primary exceptions to the rule of finality, the reopening of a claim upon the receipt of new and material evidence, and/or revision on the grounds of clear and unmistakable error (CUE). Cook, 318 F.3d at 1337 (discussing 38 U.S.C. §§ 5108, 5109A, 7111). Even these limited exceptions are strictly bound by the principles of finality and res judicata. Russell v. Principi, 3 Vet. App. 310, 315 (1992) (entering a “cautionary note” that CUE does not mean that the same issue may be endlessly reviewed; that there is finality in veterans’ benefits jurisprudence; and that once CUE is addressed it may not be raised again, it is res judicata). See also Link v. West, 12 Vet. App. 39, 44 (1998) (citing Russell, 3 Vet. App. at 315) (stating that “under the principle of res judicata, ‘[o]nce there is a final decision on the issue of [CUE] . . . that particular claim of [CUE] may not be raised again”). As noted above, in the June 2019 decision, the Board the issues currently before the Board, as per the Veteran’s wishes expressed by his private attorney in April 2019. Neither the Veteran nor his private attorney has expressed wishes to withdraw the April 2019 appeal withdrawal or otherwise reactivate the appeal regarding the issues currently before the Board. The Board has considered the application of the holding of the Court in Percy v. Shinseki, 23 Vet. App. 37 (2009), as it relates to the instant decision. In Percy, the Court noted that, although Congress used "permissive language" in the statute for filing a substantive appeal (38 U.S.C. § 7105(d)(3)), the language used by Congress in enacting the statute for filing a NOD was “mandatory,” indicating a clear intention to foreclose the Board’s exercise of jurisdiction over a matter where a NOD had not been filed, but not where a substantive appeal had not been filed. Id. at 44, citing Act of Sept. 19, 1962, Pub. L. No. 87-666, 76 Stat. 553 (enacting both NOD and Substantive Appeal requirements). Indeed, the Court noted that “[t]he permissive language of section 7105(d)(3) stands in stark contrast to the statutory language mandating that claimants file a timely NOD: ‘notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination’ and ‘[i]f no notice of disagreement is filed . . . within the prescribed period, the action or determination shall become final.’” See also Manlincon v. West, 12 Vet. App. 238, 240 (1999) (indicating that a NOD is a jurisdiction-conferring document that required remand rather than referral); Roy v. Brown, 5 Vet. App. 554, 555 (1993) (“appellate review of an RO decision is initiated by an NOD”); Marsh v. West, 11 Vet. App. 468, 470 (1998) (“an untimely NOD deprives [BVA] of jurisdiction”). In Percy, the appellant had filed a timely NOD but failed to file a substantive appeal as to all of the issues on appeal. Percy, 23 Vet. App. at 38. As the Court held the filing of a substantive appeal was permissive, the filing of the mandatory NOD allowed the Board to assume jurisdiction of the issues not included in the original substantive appeal. Id. at 46-47. The instant matter is distinguishable from Percy in that the Veteran’s prior, and effectuated, withdrawal of his appeal is considered a withdrawal of the NOD which initiated such. Without a valid and timely NOD, the Board does not have jurisdiction of the appeal. As the Board has found that it does not have jurisdiction over the issues on appeal due to the absence of a question of fact or law before it, the Board must consider whether denial or dismissal of the appealed issues is the appropriate remedy. Per the above discussion, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(3). In cases where the Board finds that a claim has no legal merit, the Board does not reach the true merits of the underlying claim, and the Court has indicated that the remedy is to either deny or dismiss (terminate) the claim/appeal. See Sabonis, 6 Vet. App. at 430 (“where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law”). In Gibson v. Peake, 22 Vet. App. 11, 20 (2007), a case in which the appeal arose from a RO finding of an untimely filed substantive appeal, the only suggested remedy by the Court was dismissal by the Board. Jurisdictional “dismissal” or “denial” has the same effect: it ends the claim. See Canady v. Nicholson, 20 Vet. App. 393, 404 (2006) (“denial of relief and dismissal of the case” both end the claim; recognizing that dismissal with prejudice is a final decision); see also Sabonis, 6 Vet. App. at 43; Fenderson v. West, 12 Vet. App. 119, 130 (Court upheld the Board's finding that, because the veteran never filed a substantive appeal with respect to specific issues, “these issues are not before the Board”). As the Board lacks jurisdiction to consider the merits of the issues certified by the AOJ, and the Board finds that dismissal of the purported issues is the appropriate remedy. (continued on the next page) As such, the appealed issues seeking increased initial evaluations for the Veteran’s service-connected limitation of flexion and abduction of the hips are without legal merit and must be dismissed. See Sabonis, 6 Vet. App. at 430 (where the law is dispositive, the claim must be denied due to a lack of legal merit). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.