Citation Nr: 21068123 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-45 606 DATE: November 9, 2021 ORDER The appeal for entitlement to a rating in excess of 40 percent for ventral hernia is dismissed. FINDINGS OF FACT 1. The April 2018 Board decision granting an initial schedular rating of 40 percent, but no higher, for the service-connected ventral hernia is final. 2. The May 2018 rating decision implemented the Board's April 2018 decision. 3. On the July 2018 VA Form 21-0958, the Veteran expressed disagreement with the 40 percent initial disability rating assigned for service-connected ventral hernia. 4. The Regional Office (RO) improperly issued the August 2018 statement of the case (SOC) after the Veteran attempted to file a notice of disagreement (NOD) with the May 2018 rating decision. CONCLUSION OF LAW The July 2018 submission was not a valid notice of disagreement. 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 July 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision (RD) of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. In a July 2019 decision, the Board denied the appeal as a matter of law, finding the Veteran's July 2018 submission was not a valid notice of disagreement (NOD). In January 2021, the United States Court of Appeals for Veterans Claims (CAVC) granted a joint motion for remand due to the Board's failure to apply CAVC's holding in Ratliff v. Shinseki, 26 Vet. App. 356 (2013). In a September 2021 decision, the Chairman of the Board determined the Veteran's July 2018 submission was a motion for reconsideration and denied the motion. 1. The appeal for entitlement to a rating in excess of 40 percent for ventral hernia is dismissed. In an April 2018 decision, the Board found that an initial schedular rating of 40 percent, but no higher, for service-connected ventral hernia was warranted. The April 2018 Board decision made all the essential adjudicative findings, including rating percentage and effective date, with consideration of the symptoms and functional impairment supported by the evidence of record. The RO issued a May 2018 rating decision implementing the April 2018 Board decision. When issuing the May 2018 rating decision, the RO did not have the authority to assign a rating contrary to the Board's order and was required to simply implement the Board's April 2018 decision. See Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (recognizing VA's administrative (RO)-judicial (BVA, appellate) review scheme, which does not permit an inferior adjudicatory tribunal to collaterally review the actions of a superior appellate tribunal). The Veteran submitted a July 2018 NOD in appeal of the May 2018 rating decision. The RO issued an August 2018 SOC denying an increased rating in excess of 40 percent for Veteran's hernia condition. However, because the RO was merely implementing the Board's April 2018 decision as to rating percentage, the Veteran did not have the option to file an NOD as to the May 2018 rating decision, and therefore the RO improperly issued the August 2018 SOC. The Veteran then filed a September 2018 Form 9 Appeal. In a July 2019 decision, the Board dismissed the Veteran's appeal as a matter of law, finding that the July 2018 filing was an invalid NOD. In addition, the Board stated the prior May 2018 decision was not appealed to the United States Court of Appeals for Veterans Claims (CAVC), and no motion for reconsideration, motion to vacate the Board decision, or motion for revision of the decision based on clear and unmistakable error (38 U.S.C. § 7111) was filed. Id. The Board indicated the time for appealing the April 2018 Board decision to the CAVC expired on August 3, 2018. Id. In January 2021, the CAVC granted a joint motion for remand due to the Board's failure to apply the holding in Ratliff v. Shinseki, 26 Vet. App. 356 (2013). Under Ratliff, when a written expression of disagreement with a Board decision is filed at the RO during the 120-day period to file an notice of appeal (NOA), the filing abates finality of the Board decision for purposes of appealing to the Court until one of the following actions is taken: (1) The Secretary determines the written disagreement is an NOA and returns it to the claimant with information concerning the proper location to file an appeal or forwards it to the Court and so notifies the claimant; (2) the Chairman of the Board determines the status of the document, that is, whether it is a motion for reconsideration of the Board decision, and notifies the claimant of his determination; or (3) the claimant files an NOA with the Court and, assuming the Court becomes aware that before the NOA was filed a written disagreement was filed with the RO within the Court's appeal period, the Court determines that the written disagreement was a misfiled NOA and not a motion for reconsideration. Id. In a September 2021 ruling, the Chairman determined the Veteran's July 2018 submission was a motion for reconsideration of the Board decision. The Chairman stated the motion did not demonstrate that the April 2018 Board decision contained obvious error of fact or law, that the decision contained findings of fact supported by plausible reasons and bases and denied the motion. The Chairman notified the Veteran of the determination and his appellate rights, including the right to appeal the Chairman's decision and the right to appeal the April 2018 Board decision. In light of the foregoing, the Board concludes that the July 2018 submission was not a valid NOD. The April 2018 Board decision entered the decision adverse to the Veteran that a rating in excess of 40 percent was not warranted. The May 2018 rating decision implemented the Board's award of 40 percent. Tellingly, the RO conducted no additional development before issuing the decision. The rating decision did make an initial determination as to the effective date of the 40 percent award which could have been appealed to the Board. However, the Veteran did not do so. He instead challenged a determination not made by the RO. Absence of a valid NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c); see Prucha v. Shulkin, No. 17-1517, 2018 U.S. App. Vet. Claims LEXIS 195 (Feb. 21, 2018) (although not precedential, the CAVC issued a memorandum decision dismissing an appeal from the Board after determining it did not have jurisdiction to order the RO to issue a statement of the case because of an invalid NOD filed as to an implementing rating decision). This jurisdictional defect may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009) (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). Therefore, the appeal must be dismissed. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.