Citation Nr: A21016288 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 200506-168072 DATE: October 4, 2021 ORDER The appeal concerning the issue of whether the severance of service connection for sinusitis was proper, is dismissed. FINDING OF FACT The Veteran did not timely appeal a July 2016 rating decision severing service connection for sinusitis, and he has not alleged clear and unmistakable error (CUE) in that rating decision. CONCLUSION OF LAW The issue of whether the severance of service connection for sinusitis was proper is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104(c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2001 to January 2002 with additional service in the National Guard and Reserve. The case is on appeal from an April 2020 rating decision. The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In his May 2020 VA Form 10182, Decision Review Request: Board Appeal, notice of disagreement (NOD), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Whether the severance of service connection for sinusitis was proper. The RO granted service connection for sinusitis in a December 2013 rating decision. In a December 2014 rating decision, the RO proposed to sever service connection for the disability. The RO issued a rating decision in July 2016 making the severance final. The Veteran was notified of that decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, no new evidence or NOD was received by VA within one year of the issuance of the July 2016 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Thereafter, in March 2018, the Veteran filed a claim, which the RO interpreted as a petition to reopen. The RO denied the claim in a September 2018 rating decision. The Veteran then filed a VA Form 20-0996 Request for Higher-Level Review (HLR) in September 2019 with regard to the severance issue. The RO informed him in September 2019 that request for HLR could not be processed because the decision on appeal was issued prior to February 19, 2019. Thereafter, the Veteran filed a Supplemental Claim Application in December 2019, which the RO denied in February 2020. In April 2020, the RO issued a second rating decision "to explain the favorable findings associated with your claim for sinusitis but were not included in our previous [February 2020] decision." The instant appeal followed. In the September 2018, February 2020, and April 2020 rating decisions the RO restated its July 2016 decision making the severance final. These decisions were issued in error. Because the July 2016 rating decision became final, the only way the decision could have been revisited was through a motion to reverse or revise the decision on the basis of clear and unmistakable error (CUE). See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). (holding that any other result would vitiate the rule of finality). The Veteran has not filed a CUE motion with respect to the July 2016 rating decision. The Veteran's filings after July 2016 should have been interpreted as petitions to reopen the claim of service connection for sinusitis. The petition to reopen the service connection claim is not within the scope of this appeal. First, the questions of law and fact for service connection claims are different from those involving whether the severance of service connection was proper. Second, the RO has not developed or adjudicated that issue. Hence, the Veteran would be materially prejudiced if the Board were to take up in the first instance. He should follow up with the RO if he wishes to pursue this claim. In short, no valid appeal currently exists as it concerns the issue of whether the severance of service connection was proper. As such, this appeal is dismissed. See 38 U.S.C. § 7105; 38 C.F.R. § 20.104(c). RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.