Citation Nr: 21064559 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-43 970 DATE: October 20, 2021 ORDER Entitlement to service connection for prostate cancer due to herbicide exposure is dismissed. REMANDED Entitlement to service connection for ischemic heart disease (IHD) is remanded. FINDING OF FACT The claim for service connection for prostate cancer due to herbicide exposure was granted by the Board in a March 2021 decision and effectuated in an April 2021 rating decision; there is no remaining case or controversy within the Board's jurisdiction pertaining to the Veteran's claim in this matter. CONCLUSION OF LAW As there is no case or controversy within the Board's jurisdiction, the Veteran's service connection claim for prostate cancer due to herbicide exposure is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1967 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for prostate cancer due to herbicide agent orange exposure is dismissed. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). 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; 38 C.F.R. § 19.55. In this case, in a March 2021 Board decision, the Board granted service connection for prostate cancer, as due herbicide exposure and denied an increased rating evaluation for service-connected tinnitus. The Board found that throughout 1970, the Veteran was stationed at the Takhli Royal Thai Air Force Base (RTAFB) and that his duties as an electrician brought him to the air base perimeter on a regular basis. The Board further remanded the issues of entitlement to service connection for bilateral hearing loss, vertigo and insomnia. The RO then issued an April 2021 rating decision awarding service connection for prostate cancer at a 0 percent disability rating and special monthly compensation based on loss of use of creative organ, effective June 25, 2012. Although in April 2021, the Veteran then filed a VA 21-4138 Statement in Support of Claim, indicating his disagreement with his evaluation rating in the rating decision, such issue is not within the jurisdiction of the Board, as the appropriate procedure for disagreement with a decision has not been filed. Under 38 C.F.R. § 20.202(d), the Board will not accept a NOD that is submitted in any format other than the form prescribed by the Secretary, including on a different VA Form. Thus, in this case, the utilization of a VA 21-4138 Statement in Support of Claim to disagree with the April 2021 rating decision is improper for the filing of an appeal. Thus, the Board does not have jurisdiction to adjudicate the merits of the appeal of the issue of entitlement to an initial increased rating for service-connected prostate cancer. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Then, in an August 2021 Board decision, service connection for right ear hearing loss was granted while service connection for left ear hearing loss was denied. The issue of entitlement to service connection for vertigo was remanded. Here, the issue of entitlement to service connection for vertigo is under development with the RO and has not yet been returned to the Board. The Board is sympathetic to the Veteran's claim but does not have jurisdiction of any of the issues of record or as indicated by the Veteran. The Board notes that a decision regarding the assignment of a disability rating assigned by the RO is as an appealable issue, however, as noted above, this issue is not before the Board for appellate review as the Veteran did not file a NOD as to the assignment of the initial disability rating. The Veteran is advised that he may appeal the April 2021 rating decision that assigned his prostate cancer disability rating by submitting the appropriate forms. REASONS FOR REMAND Entitlement to service connection for IHD is remanded. The Veteran was denied service connection for leukemia and IHD in an October 2017 rating decision. The VA then received a Notice of Disagreement (NOD) in November 2017, indicating the Veteran's disagreement with the denial-of-service connection for these issues. He then filed a claim of entitlement to service connection for the issues, received by VA in November 2017, and was notified that the claims were already pending in a February 2018 VA notification letter. A Statement of the Case (SOC) is not of record for these claims. The Veteran then filed a Supplemental claim, received in September 2020, for diseases including leukemia, and prostate cancer, but did not include IHD. Then, his claim of entitlement to service connection for leukemia was adjudicated, and denied, in a November 2020 rating decision of which no NOD for that particular rating decision is of record. Here, the Board notes that the remaining issue that the Veteran has filed a NOD to, and the RO has not issued a SOC for is the issue of entitlement to service connection for IHD. A remand is required for the RO to issue a SOC addressing the claim. The matter is REMANDED for the following action: Send the Veteran and his representative a SOC that addresses the issue of entitlement to service connection for IHD. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. Signature on the next page DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.