Citation Nr: 21002756 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 10-10 523 DATE: January 14, 2021 ORDER The appeal as to entitlement to an increased initial rating for a right ankle disability is dismissed. FINDINGS OF FACT 1. On September 17, 2020, the Veteran was notified of a September 2020 rating decision that granted an increased 20 percent rating for a right ankle disability effective October 1, 2019. 2. There is no remaining issue of law or fact for Board review with respect to the appeal as to entitlement to an increased initial rating for a right ankle disability. CONCLUSION OF LAW The criteria for dismissal of the appeal as to entitlement to an increased initial rating for a right ankle disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1993 to December 1993. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2011 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In December 2012, the Board denied entitlement to an initial evaluation in excess of 10 percent for a right ankle disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2014, the Court issued a Memorandum Decision vacating the Board’s denial of an increased rating. The Board remanded the claim in accordance with the Court’s Memorandum Decision in October 2014 and denied the claim in September 2016. The Veteran again appealed the Board’s denial to the Court, which issued an April 2017 order granting a Joint Motion for Partial Remand (JMPR) that vacated the September 2016 denial. The Board again remanded the claim pursuant to the JMPR in September 2017. In August 2019, the AOJ issued a rating decision that granted a temporary total rating for convalescence for a right ankle disability from August 7, 2019 to September 30, 2019. The Veteran was informed that the prior claim of entitlement to an increased initial rating remained on appeal. In October 2019, the AOJ issued a rating decision that granted a “retroactive” 20 percent rating for a right ankle disability effective January 19, 2009, but did not disturb the rating following expiration of the temporary total rating. In November 2019, the Veteran requested higher level review of the August 2019 rating decision and asserted that it was clear and unmistakable error (CUE) not to assign a 20 percent rating following the surgery. See November 2019 VA Form 20-0996. In March 2020, the Board determined that remand of the appeal seeking an increased initial rating for an ankle disability was warranted to allow the AOJ to adjudicate the November 2019 CUE claim. The Board directed the AOJ to adjudicate the issue of whether it was CUE when the AOJ failed to assign a 20 percent rating for the period following the assignment of a temporary total rating for convalescence. On September 9, 2020, the AOJ issued a decision assigning an increased 20 percent rating for a right ankle disability effective October 1, 2019. See September 2020 Rating Decision. That same day, the AOJ issued a Supplemental Statement of the Case (SSOC) addressing entitlement to a rating in excess of 20 percent. The Veteran was notified of the September 2020 rating decision on September 17, 2020. See September 2020 Notification Letter. In October 2020, the Veteran’s attorney submitted a brief in this matter. The attorney asserted that the AOJ erred when it issued the September 2020 SSOC because it failed to address entitlement to a rating in excess of 10 percent following expiration of the temporary total rating. See October 2020 Brief. The attorney did not identify any other error, although he included a boilerplate statement that he took exception to and preserved for appeal all errors. See id. at 2. 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. From January 19, 2009, the effective date of service connection, the Veteran is currently in receipt of the maximum schedular rating that can be assigned for limitation of motion of the ankle under 38 C.F.R. § 4.71a, Diagnostic Code 5271, 20 percent, except for the period from August 7, 2019 to October 1, 2019, during which he is in receipt of a temporary total rating for convalescence. Here, the sole issue identified in the attorney’s brief, entitlement to a 20 percent rating for a right ankle disability following expiration of a temporary total rating, has been granted in full by the AOJ. Indeed, the attorney’s brief emphasizes that the issue of entitlement to a rating in excess of the 20 percent schedular maximum “is not the issue at hand” and is not the Veteran’s contention. Thus, as the benefit sought by the Veteran and briefed by his representative has been granted in full, there remains no issue of law or fact for Board review raised by the Veteran’s attorney. The Board emphasizes that the deficiency identified in the April 2017 JMPR was failure to address additional limitation of motion due to flare-ups. See April 2017 JMPR at 2. Thus, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion, and as his attorney has stated that the issue on appeal is not entitlement to a rating in excess of the 20 percent schedular maximum, that issue has been fully resolved in the Veteran’s favor. The Board acknowledges that the Veteran has a separate pending legacy appeal. However, as that appeal was only recently certified and the attorney has not submitted appellate argument, and as that appeal involves different law and facts than the present appeal, specifically with respect to the multiple appeals of this matter to the Court, the Board will not exercise jurisdiction over that matter at this time so as to avoid prejudice to the Veteran. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate 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.