Citation Nr: 21072184 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-34 249A DATE: December 2, 2021 ORDER The appeal for entitlement to an initial rating in excess of 30 percent for diabetic nephropathy is dismissed. The appeal for entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity (RLE) with femoral nerve involvement is dismissed. The appeal for entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity (LLE) with femoral nerve involvement is dismissed. The appeal for entitlement to an initial rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity (LUE) with Parkinson's disease tremor, muscle rigidity, and stiffness is dismissed. The appeal for entitlement to an initial rating in excess of 10 percent for loss of automatic movements is dismissed. The appeal for entitlement to an initial rating in excess of 10 percent for speech changes is dismissed. The appeal for entitlement to an initial compensable rating for loss of sense of smell is dismissed. FINDINGS OF FACT 1. In the November 2018 Board decision, the claims for entitlement to higher initial ratings for diabetic nephropathy, peripheral neuropathy of the RLE with femoral nerve involvement, peripheral neuropathy of the LLE with femoral nerve involvement, diabetic peripheral neuropathy of the LUE with Parkinson's disease tremor, muscle rigidity, and stiffness, and loss of sense of smell were denied on the merits. 2. In the November 2018 Board decision, the claims for entitlement to initial ratings of 10 percent, and no higher, for loss of automatic movements and speech changes were granted on the merits. 3. There is currently no justiciable case or controversy for active consideration by the Board on the issues listed above. CONCLUSIONS OF LAW 1. The November 2018 Board decision, denying higher initial ratings for diabetic nephropathy, peripheral neuropathy of the RLE with femoral nerve involvement, peripheral neuropathy of the LLE with femoral nerve involvement, diabetic peripheral neuropathy of the LUE with Parkinson's disease tremor, muscle rigidity, and stiffness, and loss of sense of smell, as well as granting initial ratings of 10 percent, and no higher, for loss of automatic movements and speech changes, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 19.52, 20.1100 (2020). 2. There remains no case or controversy as to the issues listed above. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1966 to December 1968. His awards and decorations include the Combat Infantryman Badge. The Veteran filed a timely substantive appeal in July 2018 in response to the May 2018 statement of the case (SOC) for the issues of entitlement to higher initial ratings for diabetic nephropathy, peripheral neuropathy of the RLE with femoral nerve involvement, peripheral neuropathy of the LLE with femoral nerve involvement, diabetic peripheral neuropathy of the LUE with Parkinson's disease tremor, muscle rigidity, and stiffness, loss of automatic movements, speech changes, and loss of sense of smell. In the July 2018 substantive appeal, the Veteran requested a video conference hearing before the Board. In September 2018, the Veteran was notified by letter that he was scheduled for a video conference hearing in October 2018. In a September 2018 correspondence, the Veteran's representative noted his inability to contact the Veteran and reported that he would not attend the schedule hearing. The Veteran failed to appear for the October 2018 hearing and no response was received by the Veteran, thus his request for a hearing was considered withdrawn. 38 C.F.R. § 20.603(d) (2020). In November 2018, the Board decided the issues of entitlement to higher initial ratings for diabetic nephropathy, peripheral neuropathy of the RLE with femoral nerve involvement, peripheral neuropathy of the LLE with femoral nerve involvement, diabetic peripheral neuropathy of the LUE with Parkinson's disease tremor, muscle rigidity, and stiffness, loss of automatic movements, speech changes, and loss of sense of smell were not certified to the Board prior to November 2018. The Veteran did not appeal the November 2018 Board decision. As a result, the Board finds that the November 2018 Board decision, denying higher initial ratings for diabetic nephropathy, peripheral neuropathy of the RLE with femoral nerve involvement, peripheral neuropathy of the LLE with femoral nerve involvement, diabetic peripheral neuropathy of the LUE with Parkinson's disease tremor, muscle rigidity, and stiffness, and loss of sense of smell, as well as granting initial ratings of 10 percent, and no higher, for loss of automatic movements and speech changes, is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 19.52, 20.1100. The RO implemented the Board's decision in a December 2019 rating decision. Even though the November 2018 Board decision was final and it had been implemented, in a May 2020 supplemental statement of the case (SSOC), the agency of original jurisdiction (AOJ) readjudicated the issues of entitlement to higher initial ratings for diabetic nephropathy, peripheral neuropathy of the RLE with femoral nerve involvement, peripheral neuropathy of the LLE with femoral nerve involvement, diabetic peripheral neuropathy of the LUE with Parkinson's disease tremor, muscle rigidity, and stiffness, loss of automatic movements, speech changes, and loss of sense of smell, and certified these issues to the Board in May 2020. In April 2021, the Veteran was notified by letter that he was scheduled for a video conference hearing in September 2021. The Veteran failed to appear for the September 2021 hearing. The issues above are not currently on appeal for appellate review as they were adjudicated on the merits in the final November 2018 Board decision and no case or controversy remains. The Veteran was advised in the November 2018 Board decision of his rights to properly appeal the final November 2018 Board decision and he did not do so. He has not provided any communication to VA addressing the issues decided in the Board decision. The issues were resolved in the final November 2018 Board decision which address them on their merits, and there is no controversy currently before the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.