Citation Nr: A24029729 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 240320-425444 DATE: June 6, 2024 ORDER The appeal with respect to the determination that a duty to assist error has been identified during the higher-level review for bilateral tinea pedis is dismissed. FINDING OF FACT The January 2024 higher-level review decision identified a duty to assist error, and the claim of service connection for bilateral tinea pedis was not ripe for adjudication by the agency of original jurisdiction (AOJ) at the time of the issuance of the January 2024 higher-level review decision. CONCLUSION OF LAW The criteria for dismissal of the appeal with respect to the determination that a duty to assist error has been identified during the higher-level review for bilateral tinea pedis have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2010 to March 2011, from April 2011 to February 2012, and from February 2012 to July 2012. A January 12, 2024, decision confirmed and continued the previous denial of service connection for bilateral tinea pedis. The Veteran sought higher-level review of the decision. A higher-level review was conducted and the January 16, 2024, higher-level review rating decision on appeal was issued. In its decision, the AOJ found a duty to assist error had been identified during the higher-level review for bilateral tinea pedis and continued development of that claim. On March 20, 2024, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the direct review docket of the January 16, 2024, AOJ decision. As a result, the Board may only consider the evidence of record at the time of the January 16, 2024, AOJ decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Dismissal In the January 16, 2024, higher-level review rating decision, the AOJ identified a duty to assist error with respect to the Veteran's claim of service connection for bilateral tinea pedis. Specifically, the AOJ found that it failed to develop the claim for toxic exposure risk activity, to include an examination and medical opinion, and stated that it would develop the Veteran's claim for toxic exposure risk activity. On March 20, 2024, the Veteran filed a VA Form 10182 seeking review of the January 16, 2024, rating decision. However, the AOJ did not adjudicate the claim of service connection for bilateral tinea pedis in the January 16, 2024, higher-level review rating decision. Since a decision was not rendered, the Veteran's appeal in the March 2024 VA Form 10182 was premature. Therefore, the appeal with respect to the determination that a duty to assist error has been identified during the higher-level review for bilateral tinea pedis is dismissed as a matter of law. 38 C.F.R. § 20.201. For clarity, the Board is not dismissing the Veteran's claim of service connection for bilateral tinea pedis. As to the January 16, 2024, higher-level review rating decision, there is nothing for the Board to adjudicate because the AOJ did not make a decision on the Veteran's claim. Instead, the AOJ found that an error was made and informed the Veteran that it was correcting that error and would continue development of the claim before deciding the Veteran's claim. Therefore, once the AOJ corrects its duty to assist error and issues a rating decision on the merits, the Veteran will have the opportunity to pursue an appeal regarding his claim of service connection for bilateral tinea pedis. (Continued on the next page) ? The Board acknowledges the AOJ issued a decision (denied) for the Veteran's claimed disability on March 15, 2024, after correcting the matters identified in the higher-level review. Although the Veteran filed VA Form 10182s on March 20, 2024 (appealing the January 16, 2024 decision) and March 23, 2024 (appealing the January 16, 2024 and prior AOJ decisions), the Board has no record of an appeal of the March 15, 2024 AOJ decision. The Board will not presume the Veteran' s intent to file an appeal of the March 15, 2024 AOJ decision based solely upon the appeals of the prior decisions, as to do so would potentially compromise the Veteran's appellate rights in this matter. If the Veteran wishes to appeal the March 15, 2024 AOJ decision, he should file a VA Form 10182, specifically identifying that decision. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ti'a L. Smith, 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.