Citation Nr: A25035161 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210909-184120 DATE: April 16, 2025 ORDER The appeal of the finding of a duty to assist error regarding the Veteran's claim to establish service connection for chronic kidney disease in the April 2021 rating decision is dismissed. FINDING OF FACT The finding of a duty to assist error in the April 2021 rating decision was not an adverse action, and therefore, it was not appealable. CONCLUSION OF LAW The criteria for dismissal of the appeal of the finding of a duty to assist error regarding the Veteran's claim to establish service connection for chronic kidney disease in the April 2021 rating decision have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1987 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2021 rating decision by the Department of Veterans Affairs (VA) Veterans Benefits Administration Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In September 2021, the Veteran requested evidence submission review of the appeal by the Board on a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). Under the evidence submission review election, the Board may consider evidence of record at the time of the April 2021 rating decision on appeal, evidence submitted by the Veteran with the Notice of Disagreement in September 2021, and any evidence submitted by the Veteran or representative within 90 days following receipt of the Notice of Disagreement. 38 C.F.R. § 20.303. 1. The appeal of the finding of a duty to assist error regarding the Veteran's claim to establish service connection for chronic kidney disease in the April 2021 rating decision is dismissed. By way of history, in January 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review, and requested review of an October 2020 rating decision which denied entitlement to service connection for chronic kidney disease. Notably, the Veteran referred to a December 2007 rating decision. However, on review of the Veteran's request, the Higher-Level-Reviewed identified that the actual date of the rating decision was October 2020. In April 2021, the AOJ issued a rating decision finding a duty-to-assist error in the previous January 2021 rating decision and undertook further development. Specifically, the April 2021 rating decision stated that a medical examination and/or medical opinion was needed. In September 2021, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), appealing the April 2021 rating decision. VA regulations provide that a Notice of Disagreement must identify specific decisions or issues with which a claimant disagrees. The term issue means an adjudication of a specific entitlement as described in 38 C.F.R. § 3.151(c). 38 C.F.R. § 20.202(a). On review, the Board finds that the September 2021 Notice of Disagreement was premature with regards to entitlement to service connection for chronic kidney disease. The April 2021 rating decision which found a duty to assist error regarding this claim was not an adverse action, and therefore, was not appealable. The Board may dismiss any appeal which fails to allege specific error of fact or law in the issue being appealed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.202. The Veteran specifically appealed the April 2021 rating decision which found a duty to assist error and did not determine a specific issue or make adjudication of a specific entitlement. As the Veteran attempted to appeal the finding that there was a duty to assist error rather than appealing the merits of a decision, the appeal must be dismissed. 38 C.F.R. § 20.104(c). Scott W. Dale Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Marissa R. Harper, 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.