Citation Nr: 21010686 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-04 392 DATE: February 25, 2021 ORDER Entitlement to an increased initial rating for postoperative right knee scars is dismissed. Entitlement to an effective date prior to July 1, 2015, for the award of service connection for a psychiatric disability is denied. Entitlement to an effective date prior to July 1, 2015, for the award of Dependency Educational Assistance (DEA) is denied. REMANDED Entitlement to a rating in excess of 60 percent for a left knee disability, status-post total right knee arthoplasty, is remanded. FINDINGS OF FACT 1. The claim for an increased initial rating for postoperative right knee scars was decided by the Board in a July 2019 decision. 2. Prior to July 1, 2015, the Veteran was employed and did not qualify for DEA benefits. CONCLUSIONS OF LAW 1. Regarding the issues of entitlement to an increased initial rating for postoperative knee scars, there is no appeal before the Board. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for entitlement to an effective date earlier than July 1, 2015, for the award of a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date earlier than July 1, 2015, for the award of DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3501, 5110; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from April 1961 to April 1964. In October 2018, a hearing was held before a former Veterans Law Judge (VLJ). The Veteran was notified that the former VLJ retired and the Veteran testified at a second hearing before hearing before the undersigned Veterans Law Judge (VLJ) in December 2020. Dismissal In July 2019, the Board granted a 10 percent rating for postoperative knee scars. That decision was implemented in a May 2020 rating decision, which assigned a 10 percent rating effective June 24, 2016. The Veteran appealed the rating assigned by the May 2020 rating decision. Generally, all questions in a matter subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. 38 U.S.C. § 7104(a). Final decisions on such appeals shall be made by the Board. Id. All Board decisions will be stamped with the date of mailing on the face of the decision. 38 C.F.R. § 20.1100(a). Unless the Chairman of the Board orders reconsideration (or pursuant to those exceptions identified in §20.1100(b)), all Board decisions are final on the date stamped on the face of the decision. 38 U.S.C. §§ 7103, 7104; 38 C.F.R. § 20.1100(a). In addition, a notice of disagreement can only be filed with respect to “an adjudicative determination by the agency of original jurisdiction [(AOJ)].” 38 C.F.R. § 20.201. Although the Veteran filed a “Notice of Disagreement” as to the rating assigned by the May 2020 rating decision, that decision was simply implementing the final Board decision. The appellant cannot challenge the merits of the Board’s July 2019 decision by expressing disagreement with the AOJ’s implementing decision. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also 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”). In July 2019, the Board issued a final decision on the issue of entitlement to an increased rating for postoperative knee scars for the entire period on appeal. That decision became final on the date it was mailed. 38 C.F.R. § 20.1100(a). The Veteran has not appealed the rating assigned by the Board to the U. S. Court of Appeals for Veterans Claims, filed a motion for reconsideration, or alleged clear and unmistakable error in the Board decision, and the Veteran has not submitted a notice of disagreement with the May 2020 rating decision regarding the effective date assigned by the AOJ. There remains no allegation of error of fact or law for (or pending) appellate consideration. Therefore, the appeal must be dismissed due to lack of jurisdiction. Effective Date On June 24, 2016, the Veteran submitted a VA form 21-8940, on which he reported that he last worked full-time June 30, 2015. In a November 2017 rating decision, VA granted a TDIU based on the right knee disability effective July 1, 2015. VA also granted basic eligibility to DEA benefits effective July 1, 2015. The Veteran contends that an effective date earlier than July 1, 2015, is warranted. The general rule with respect to the effective date of an award of increased compensation is that the effective date of award, “shall not be earlier than the date of receipt of the application thereof.” 38 U.S.C. § 5110(a). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule applies, however, where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC12-98 (1998). The record indicates that the Veteran worked until July 1, 2015. There is no indication, including allegation, that the work was marginal or in a protected environment. There is no evidence of entitlement to TDIU prior to July 1, 2015. Accordingly, the Board finds the earliest possible effective date for the award of a TDIU is the currently assigned effective date, and the claim for an effective date prior to July 1, 2015, for the award of a TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board’s denial of an earlier effective date for the award of a TDIU precludes the assignment of an effective date prior to July 1, 2015, for the award of DEA benefits. The currently assigned effective date of July 1, 2015, for basic eligibility for DEA benefits was directly related to the award of a TDIU. Eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) disability rating, and the effective date of such eligibility cannot precede the July 1, 2015, effective date. Accordingly, the assignment of an effective date earlier than July 1, 2015, for the award of eligibility to DEA benefits under Chapter 35, is not warranted. REASONS FOR REMAND In October 2018, the Veteran presented testimony on the claim for increased rating for the left knee disability before a Veterans Law Judge (VLJ). The Board remanded the matter in July 2019. In December 2020, in conjunction with a separate appeal stream (the issues denied and dismissed herein), the Veteran provided testimony before the undersigned VLJ. The undersigned VLJ informed the Veteran and his representative that the VLJ who conducted the October 2018 hearing was no longer able to participate in the appeal and that the December 2020 hearing was a substitute for the October 2018 hearing regarding the increased rating claim. The Veteran provided extensive testimony related to the claim for increased rating for the left knee disability. In January 2021, the Veteran’s representative asked for a virtual hearing on the issue of increased rating for the left knee disability. The representative did not provide any rationale for the request, and there is no indication due process was not satisfied with the December 2020 hearing. Thus, the Board finds another hearing is not warranted at this time. Cf. Quinn v. Wilkie, 31 Vet. App. 284 (2019). In a November 2020 letter, the Veteran’s attorney raised questions relating to a VA examiner’s qualifications and requested a copy of the examiner’s personnel file or curriculum vitae (CV). The attorney did not specify which examiner, and the Board assumes the attorney refers to the August 2020 VA examination. The Board finds that a remand is necessary for opportunity to provide the Veteran and his attorney a copy of the August 2020 VA examiner’s CV. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019).   The matters are REMANDED for the following action: Provide the Veteran and his attorney with a copy of the August 2020 VA examiner’s CV. If the information requested is not available, then the AOJ should advise the Veteran of such and note the reasons for such in the record. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.