Citation Nr: A25035388 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210716-173069 DATE: April 16, 2025 ORDER The appeal seeking an initial disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) from February 14, 2019, is dismissed. FINDINGS OF FACT 1. On June 21, 2021, the Board of Veterans' Appeals (Board) issued a decision that granted a 70 percent initial disability rating, but no higher, for service-connected PTSD. 2. The Board's June 21, 2021, decision was implemented by the Agency or Original Jurisdiction (AOJ) in rating decision issued on June 23, 2021; the 50 percent initial disability rating for service-connected PTSD was increased to 70 percent, but no higher, from February 14, 2019. 3. The Veteran did not seek reconsideration or appeal of the Board's June 21, 2021, decision as it pertained to the initial disability rating for service-connected PTSD assigned and/or denied by the Board in the same. 4. The June 21, 2021, Board decision is final. 5. The Veteran has not sought revision of the June 21, 2021, Board decision based on clear and unmistakable error (CUE) in the same. CONCLUSION OF LAW As a final June 21, 2021, Board decision has decided the matter of the propriety of the assignment of an initial disability rating in excess of 70 percent for service-connected PTSD from February 14, 2019, the matter is res judicata, and the Board has no jurisdiction to further consider an appeal in the matter. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1982 to July 1994. See DD Form 214. In August 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act or AMA), Pub. Law 115-55, which created a new claims and appeals process for pursuing VA benefits. All initial rating decisions issued after February 19, 2019, are promulgated under the AMA. In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Review Docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 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 claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to an initial disability rating in excess of 70 percent for service-connected PTSD from February 14, 2019 With few exceptions, Board decisions are final when issued. 38 C.F.R. § 20.1100. As noted by the Federal Circuit in Cook v. Principi, "principles of finality and res judicata apply to agency decisions that have not been appealed and have become final." Cook v. Principi, 318 F.3d 1334, 1336(2002). In DiCarlo v. Nicholson, 20 Vet. App. 52, 55-56 (2006), the Court explained the concept of res judicata as follows: The concept of res judicata requires that there be only one valid decision on any adjudicated issue or claim; that decision is only the appropriate target for any future collateral attack on that issue or claim. Hazan v. Gober, 10 Vet. App. 511, 520-21 (1997) (holding that where an unappealed final decision is determinative of an issue, an appellant is collaterally estopped from "relitigating the same issue based upon the same evidence, albeit for a different purpose"). Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded. See Leonard v. Nicholson, 405 F. 3d 1333, 1337 (Fed. Cir. 2005) ("The purpose of the rule of finality is to preclude repetitive and belated re-adjudications of veterans' benefits claims.") Cook, 318 F.3d at 1339; Bissonette, 18 Vet. App. At 112 ("In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three.") There are two primary exceptions to the rule of finality, the reopening of the claim upon the receipt of new and relevant evidence, and/or the revision on the grounds of CUE. Cook, 318, F.3d at 1337. (discussing 38 U.S.C. §§ 5108, 5109A, 7111); 38 C.F.R. §3.2501. Even these limited exceptions are strictly bound by the principles of finality and res judicata. See Russell v. Principi, 3 Vet. App. 310, 315 (1992). (entering a "cautionary note" that CUE does not mean that the same issue may be endlessly reviewed; that there is finality in veterans' benefits jurisprudence; and that once CUE is addressed it may not be raised again, it is res judicata). See also Link v. West, 12 Vet. App. 39, 44 (1998) (citing Russell, 3 Vet. App. At 315) (stating that "under the principle of res judicata, '[o]nce there is a final decision on the issue of [CUE]that particular claim of [CUE] may not be raised again"). Analysis The facts pertinent to the Veteran's appealed issue are not in dispute. Service connection for PTSD was granted by the AOJ in a June 2019 rating decision; a 50 percent initial disability rating was assigned, effective from February 14, 2019. In July 2019, the Veteran initiated a timely AMA appeal to the Board regarding the propriety of the assigned initial disability rating. The Board denied this appealed issue in a decision issued in March 2020; however, the Veteran filed a timely appeal to the Court of Appeals for Veterans Claims (Court). In January 2021, a private attorney representing the Veteran and a member of VA's Office of General Counsel executed a Joint Motion for Remand (Joint Motion), requesting that the Court vacate the Board's March 2020 decision and remand the matter back to the Board for further actions congruent with the parties agreements in the Joint Motion. The Court endorsed this Joint Motion later in January 2021. On June 21, 2021, the Board issued a decision that increased the initial disability rating assigned for the Veteran's service-connected PTSD from 50 percent to 70 percent, but no higher. The Board's partial grant was implemented by the AOJ in a rating decision issued on June 23, 2021; the 50 percent initial disability rating for service-connected PTSD was increased to 70 percent, effective from February 14, 2019 (the date of the award of service connection for this disability). The Veteran did not seek reconsideration or appeal of the Board's June 21, 2021, decision in a timely manner as it pertained to the initial disability rating for service-connected PTSD assigned and/or denied by the Board in the same. The Veteran has not sought revision of the June 21, 2021, Board decision based on CUE in the same. In sum, the rating decision on appeal merely implemented the Board's June 2021 partial allowance of the Veteran's appeal seeking an increased initial rating for service-connected PTSD. More specifically, the AOJ did not adjudicate any issue regarding the propriety of the initial disability rating assigned for this service-connected disability in the June 2021 rating decision, as the AOJ did not have the authority to assign such contrary to the Board's June 2021 order in this regard. Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (recognizing VA's administrative (RO)-judicial (BVA, appellate) review scheme, and declining to interpret a regulation in such a way that would, counter to that scheme, "oddly, permit an inferior [adjudicatory tribunal] to collaterally review the actions of a superior" appellate tribunal). (Continued on the next page) ? As no issue, or even a question of fact or law, was adjudicated by the AOJ in the June 2021 rating decision that merely implemented the Board's June 2021 decision, there was no specific error of fact or law that could be appealed to the Board in the present matter. As such, the current appeal is without legal merit, as the matter had been previously decided in a final order, and it must be dismissed. 38 U.S.C. § 7105 (the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed); Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Scott W. Dale Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board De Angelis, A. 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.