Citation Nr: 21074822 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-49 192 DATE: December 16, 2021 ORDER Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) with a history of alcohol and cocaine abuse prior to December 29, 2016 is dismissed. FINDINGS OF FACT 1. The issue of an increased rating for PTSD for the period prior to December 29, 2016 has previously been adjudicated by the Board of Veteran's Appeals (BVA). 2. The Veteran did not file an appropriate appeal to the BVA decisions within 120 days of the Board's decision, thus making the BVA decisions final. CONCLUSION OF LAW The criteria for dismissal of entitlement to a rating in excess of 50 percent for PTSD prior to December 29, 2016 have been met. 38 U.S.C. §§ 511(a), 7104; 38 C.F.R. § 20.104(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1968 to November 1970. In July 2021, the Veteran's representative submitted a motion to withdraw as the Appellant's counsel. A Certification of Appeal (VA Form 8) dated November 2017 establishes that the claim was certified to the Board. See 38 C.F.R. § 19.35. In this regard, 38 C.F.R. § 20.6 (a)(2) governs motions to withdraw as representative after certification to the Board and provides that a representative may not withdraw representation without good cause shown on motion, accompanied by a "signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which a copy was mailed." See 38 C.F.R. § 20.6 (a)(2). Here, the representative indicated that representation would be improper as the Veteran requested that counsel withdraw from representation for the claim. Also submitted was a signed statement by the representative confirming that a copy of the withdrawal motion was sent by first-class mail to the Appellant. As such, the Board finds that counsel has provided sufficient good cause for withdrawal pursuant to 38 C.F.R. § 20.6 (a)(2), and the motion is therefore granted. In a July 2012 rating decision, the Agency of Jurisdiction (AOJ) granted the Veteran service connection for PTSD with an initial rating of 30 percent. The Veteran filed a Notice of Disagreement (NOD) in September 2012 arguing that he was entitled to a higher rating. A November 2015 BVA decision was issued and found that the Veteran was not entitled to a rating in excess of 30 percent for the periods of October 2010 to January 2013 and April 2013 to May 2014. The Veteran was granted a 70 percent rating for the period in which he was hospitalized from January to April 2013. The Board remanded the period after May 2014 for further development. The Veteran was properly notified of his right to appeal the Board's decision to file a Notice of Appeal with the Court within 120 days from the date the decision was mailed to him. The Veteran did not file an appropriate appeal within 120 days of the Board's decision, thus making the Board's November 2015 decision final. A May 2016 rating decision was issued to reflect the Board's decision. In September 2016, the Veteran, through his representative, improperly filed a NOD with respect to the May 2016 rating decision for a higher rating. After further development of the issue on remand, a June 2017 BVA decision denied a higher rating for the period of May 2014 to May 2015 and granted the Veteran an increased rating for the period of May 2015 to December 2016 of 50 percent. The Veteran was properly notified of his right to appeal the Board's decision to file a Notice of Appeal with the Court. An August 2017 rating decision was issued reflecting the Board's decision. The Veteran through his representative again improperly appealed the decision, asserting the Veteran's disability warranted a 100 percent rating prior to December 30, 2016. The Veteran did not file an appropriate appeal within 120 days of the Board's decision, thus making the Board's June 2017 decision final. 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. Here, in light of the Board's final June 2017 decision the issue of entitlement to a rating in excess of 50 percent prior to December 30, 2016 must be dismissed for lack of jurisdiction as the Board has already adjudicated the period and the Veteran did not properly file an appeal. Dismissal for lack of jurisdiction is appropriate when there are no remaining questions of law or fact to be decided by the Board. See 38 U.S.C. §§ 511(a), 7104; 38 C.F.R. § 20.104(a); see also See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); 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"). Given, the aforementioned, there remains no case or controversy, or dispute of fact or law, regarding the issue. See 38 U.S.C. § 7105. As such, the claim is dismissed. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.