Citation Nr: 21013945 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-08 785 DATE: March 10, 2021 ORDER The appeal concerning the issue of entitlement to extension of a temporary total (i.e., temporary 100 percent) rating pursuant to 38 C.F.R. § 4.30 based on surgery for a service-connected back disability necessitating convalescence from July 1, 2017 through August 30, 2016 is dismissed. FINDING OF FACT In a final and binding (since not appealed) June 2018 decision, the Board denied a temporary total rating pursuant to 38 C.F.R. § 4.30 for the period after June 30, 2016 for surgical treatment of the Veteran’s service-connected back disability necessitating convalescence. CONCLUSION OF LAW The criteria are met for dismissal of this claim of entitlement to an extension of that temporary total rating from July 1, 2017 through August 30, 2016 because the Board already has denied this request and, consequently, does not have jurisdiction to again consider this request for extension. 38 U.S.C. § 7105; 38 C.F.R. § 20.200.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1987 to December 1991. The Veteran testified in support of this claim during a recent January 2021 hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. But, as will be discussed, the Board does not have jurisdiction to decide this claim for an extension of his temporary total convalescent rating under the provisions of § 4.30; thus, this claim must be dismissed. In a June 2016 rating decision, the Regional Office denied an extension of the Veteran’s temporary total convalescence rating following his spinal surgery. By way of relevant procedural history, in a June 2018 decision, the Board granted an extension of a temporary total rating pursuant to 38 C.F.R. § 4.30 based on surgical treatment for the Veteran’s service-connected back disability necessitating convalescence through June 30, 2016, but denied an extension beyond that date. He did not appeal that decision to the higher United States Court of Appeals for Veterans Claims (Veterans Court/CAVC); therefore, that decision is a final and binding determination. See 38 C.F.R. § 20.1100. The Board also remanded additional claims of entitlement to a rating higher than 40 percent for the Veteran’s back (lumbar spine) disability and for service connection for radiculopathy of his lower extremities alleged to be the result of (i.e., secondary to) his back disability. In a September 2018 decision since issued, the Board denied entitlement to a rating higher than 40 percent for the Veteran’s lumbar spine disability. He also did not appeal that decision to the higher Court (CAVC), so it, too, is a final and binding determination. See 38 C.F.R. § 20.1100.   In an October 2018 decision, the RO effectuated the Board’s grant of the temporary total rating through June 30, 2016, but not beyond. This is not an appealable rating as it was merely the implementation of the Board’s decision. A Veteran cannot challenge the merits of a Board decision by expressing disagreement with the Agency of Original Jurisdiction’s (i.e., RO’s) implementing decision. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); cf. Buckley v. West, 12 Vet. App. 76, 84 (1998) ("[D]isposition of a claim by an RO upon remand from the Board does not create a new decision by the [AOJ]."). Also in that October 2018 decision, the RO granted the Veteran’s claim for service connection for his bilateral (right and left) lower extremity radiculopathy that is secondary to his lumbar spine disability and continued the Board’s denial of a rating higher than 40 percent for this underlying lumbar spine disability as of July 1, 2016. [Note: The Veteran since has had another temporary 100 percent convalescent rating for this disability under § 4.30 effective September 1, 2016, and the 40 percent rating for this disability resumed as of November 1, 2016 and has remained in effect ever since.] In February 2019, the Board notified the Veteran that it had formally placed his appeal on the Board’s docket, and in December 2020 the Board notified him that he had requested a Board hearing but that, if he wanted, he could have a “virtual” hearing, instead, because of COVID-19. However, those letters were sent in error because his claim for an extension of his temporary total disability rating already had been denied in the Board’s June 2018 decision that did not extend this rating beyond June 30, 2016. The confusion appears to stem from the merging of his appeal for an increased rating for his lumbar spine disability and for service connection for the radiculopathy of his lower extremities secondary to the lumbar spine disability, which was placed on the Board’s docket based on an August 2013 rating decision, with the appeal for an extension of his temporary total convalescent rating that was placed on the Board’s docket based, instead, on a June 2016 rating decision. Essentially, the Board merged the issues in its June 2018 decision, taking jurisdiction of the appeal from the June 2016 rating decision earlier than the normal docketing procedure, because the Board had jurisdiction of the appeal from the August 2013 rating decision. Regardless,   the issue of entitlement to an extension of the temporary total disability rating was adjudicated by the Board in the June 2018 decision. And, once that decision was not appealed to the higher Court (CAVC), that decision became a final and binding determination – including, importantly, as concerning whether an extension of this temporary 100 percent rating was warranted beyond June 30, 2016, i.e., during the immediately succeeding period in question from July 1, 2017 through August 30, 2016. The Board acknowledges that it recently held the hearing in January 2021, but that does not convey jurisdiction of the issue to the Board in the absence of a rating decision subsequent to the Board’s June 2018 decision already denying this requested extension and a proper appeal. As the Board currently lacks jurisdiction, it must dismiss this appeal. 38 U.S.C. § 7105. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.