Citation Nr: 21065301 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-17 970 DATE: October 25, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for allergic rhinitis with sinusitis is dismissed. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. FINDINGS OF FACT 1. In a November 2014 decision, the Board granted an increased rating for the Veteran's service-connected allergic rhinitis and denied his claim for entitlement to a TDIU. The RO implemented the Board's decision in a December 2014 rating decision. 2. The Veteran filed a notice of disagreement as to the December 2014 rating decision in June 2015; he later filed a substantive appeal to the Board as to the issues from the December 2014 rating decision. 3. Because the December 2014 rating decision was implementing the Board's decision, the Veteran cannot challenge the merits of the Board's decision by filing a notice of disagreement. CONCLUSIONS OF LAW 1. The claim for entitlement to an increased rating for service-connected allergic rhinitis is dismissed as a matter of law. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. The claim for entitlement to a TDIU is dismissed as a matter of law. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1954 to November 1957. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an evaluation in excess of 30 percent for allergic rhinitis with sinusitis is dismissed 2. Entitlement to a TDIU is dismissed. Generally, all questions in a matter subject to decision by VA shall be subject to one review on appeal and final decisions on such appeals shall be made by the Board. See 38 U.S.C. § 7104(a). All Board decisions will be stamped with the date of mailing on the face of the decision and, absent exceptions inapplicable in this case, all Board decisions are final on the date stamped on the face of the decision. See 38 C.F.R. § 20.1100(a). Further, a claimant may not challenge the merits of a Board decision by expressing disagreement with the RO's implementing rating decision. See Harris v. Nicholson, 19 Vet. App. 345 (2005), see also 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 RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal"). The United States Court of Appeals for the Federal Circuit has stated that "it is improper for a lower tribunal (the RO) to review the decision of a higher tribunal (the Board [])." Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). With that legal background established, the Board can turn to the facts of this case. In a November 2014 decision, the Board granted an increased rating for the Veteran's service-connected allergic rhinitis; specifically, the Board granted a 30 percent rating applicable to the entire period on appeal. The Board also denied the Veteran's claim for a TDIU. In December 2014, the RO issued a rating decision that implemented the Board's grant of an increased rating. Thereafter, the Veteran filed a substantive appeal in June 2015; the RO interpreted this appeal as a notice of disagreement with its decision, and in March 2016, the RO issued a Statement of the Case denying a rating in excess of 30 percent and denying the claim for a TDIU. The Veteran filed a substantive appeal as to that SOC in April 2016. Initially, the Veteran had requested a hearing before a member of the Board regarding this second appeal; in December 2020, the Veteran withdrew that request. Given this history and the law summarized above, the Board must dismiss the Veteran's appeals. Again, these appeals were initiated not from an original rating decision, but rather from the December 2014 rating decision that implemented the Board's grant. As shown by the summarized law above, such an action is not allowed. The Board has interpreted the Veteran's June 2015 notice of disagreement as a request for reconsideration of the Board's November 2014 decision. In May 2021, the Board denied the request for reconsideration. Further, to comply with all required due process concerns, the Board informed the Veteran of the procedural defect at issue here in an August 2021 letter; in September 2021, the Veteran confirmed receipt of this letter and noted that he had nothing further to submit. In light of these facts, the Board finds that consistent with the law governing veterans appeals, the Veteran's notice of disagreement with the rating decision that implemented the Board's grant here is not proper. Accordingly, these issues must be dismissed as a matter of law. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.