Citation Nr: A21019388 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 210816-178737 DATE: December 6, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for a low back disability is dismissed. FINDING OF FACT 1. An August 2021 rating decision by a Department of Veterans Affairs Regional Office (RO) implemented a final July 2021 Board decision with respect to the increased rating claim for lower back disability, which granted an increased initial rating of 20 percent. 2. The Veteran's August 2021 notice of disagreement with the evaluation of his lower back disability, as assigned in the RO's August 2021 rating decision, was a challenge to the implementation of the rating assigned by the Board in its July 2021 decision. CONCLUSION OF LAW The August 2021 VA Form 10182 regarding the issue of entitlement to an increased rating for the Veteran's low back disability was not valid for purposes of initiating an appeal of that issue, and thus, the appeal is dismissed. 38 U.S.C. § 7103, 7104, 7105; 38 C.F.R. § 20.201, 20.202, 20.203, 20.205, 20.1100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1962 to September 1965. 1. Entitlement to an initial rating in excess of 20 percent for a low back disability. This matter has previously been before the Board of Veterans Appeals (Board). In March 2021, the Board granted service connection for a low back disability. The Board's decision was implemented by the agency of original jurisdiction (AOJ) in a March 2021 rating decision, assigning an initial rating of 10 percent. In April 2021, the Veteran appealed that initial rating by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and selected the Evidence Submission docket, which enabled the Board to consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the appellant or his representative with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. The Veteran noted on the VA Form 10182 that he requested a 40 percent rating. The Board issued a decision in July 2021, granting an initial rating of 20 percent disabling, but no higher, for the Veteran's low back disability. Subsequently, the Rating Office (RO) issued an August 2021 rating decision implementing the Board's decision. The Board's July 2021 decision was final when rendered, and the appellant neither filed a request for reconsideration of that decision with the Board, nor has he filed a notice of appeal of that decision with the Court of Appeals for Veterans Claims (Court). See 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. Instead, the Veteran attempted to appeal the RO's August 2021 rating decision which implemented the Board's July 2021 decision with respect to the 20 percent rating for the low back disability by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and indicating his request for a 40 percent rating. However, the 20 percent rating was assigned by the Board in its July 2021 decision, whereas the RO's August 2021 decision merely implemented the Board's decision. An appellant cannot challenge the merits of a Board decision by expressing disagreement with the implementing RO 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 regulations to permit review by RO of a Board decision is 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"). Rather, the Board decision must be challenged via a motion for reconsideration or an appeal to the Court. Harris, 19 Vet. App. at 348; 38 U.S.C.§§ 7252(a), 7266(a). Alternatively, the Board notes that if the Veteran has new and relevant evidence to support a rating in excess of 20 percent, he may file a supplemental claim with the AOJ on VA Form 20-0955. Notably, certain regulations are in effect to preserve effective dates for continuously pursued claims; however, certain time limits apply. See 38 C.F.R. § 3.2500, 3.2501. Given the procedural history of this case described above, there is no legal basis for the Board to again adjudicate this claim. Hence, the Board has no alternative but to dismiss the appeal. See Sabonis v. Brown, 6 Vet. App. 426 (1994). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.