Citation Nr: A25035850 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240530-444670 DATE: April 18, 2025 ORDER The issue of entitlement to an earlier effective date for the assignment of a 70 percent evaluation for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder and generalized anxiety disorder (hereinafter, service-connected acquired psychiatric disabilities), is dismissed. FINDINGS OF FACT 1. A September 2023 Department of Veterans Affairs (VA) Regional Office (RO) rating decision implemented a September 2023 Board of Veterans' Appeals (Board) decision that granted an initial rating for the Veteran's acquired psychiatric disabilities from 50 to 70 percent for the Veteran's acquired psychiatric disabilities. 2. The Veteran sought higher level review of the September 2023 rating decision, and, in a May 2024 rating decision, the RO denied an earlier effective date for the assignment of a 70 percent rating for the Veteran's psychiatric disabilities. 3. The May 2024 higher level review rating decision is ministerial and thus not a decision that can be appealed to the Board. 4. The May 2024 Notice of Disagreement (NOD) is not considered to be a motion for reconsideration. CONCLUSION OF LAW The criteria for the dismissal of the issue of entitlement to an earlier effective date for the assignment of a 70 percent evaluation for acquired psychiatric disabilities have been met. 38 U.S.C. §§ 511 (a), 7104, 7105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1991 to October 1992. This appeal to the Board stems from a March 5, 2019, VA Form 20-0995, supplemental appeal, that the agency of original jurisdiction (AOJ) interpreted as a claim for entitlement to service connection for PTSD. By way of a rating decision in November 2019, the AOJ granted service connection for PTSD, major depressive disorder, generalized anxiety disorder, and panic disorder, initially assigning a 50 percent disability rating evaluation, effective March 5, 2019. In December 2019, the Veteran filed a VA Form 10182 NOD to the Board explicitly disagreeing with the 70 percent rating for the psychiatric disability. In September 2023, the Board issued a decision granting an increase in disability evaluation rating to 70 percent, effective March 5, 2019. The AOJ issued a rating decision incorporating the Board decision, also in September 2023. In February 2024, the Veteran filed a VA Form 20-0996, higher level review (HLR) appeal, requesting an earlier effective date, which the AOJ subsequently denied by way of a May 2024 rating decision. In the May 2024 VA Form 10182, Decision Review Request: Board Appeal NOD, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2023 AOJ decision, which was subsequently subject to higher-level review. 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. The issue of entitlement to an earlier effective date for the assignment of a 70 percent evaluation for service-connected acquired psychiatric disabilities is dismissed. The Veteran, through her representative, contends that an earlier effective date, is warranted for the assignment of a 70 percent disability rating for her service-connected acquired psychiatric disabilities. The Veteran essentially argues that the November 2019 AMA rating decision granting service connection for an acquired psychological disorder, effective March 5, 2019, is not the "full benefit sought" and requests an earlier effective date. The Board is sympathetic to the Veteran's arguments that were presented, however, there is no legal mechanism to support an award of an earlier effective date. By way of history, service connection for unspecified depressive disorder was first denied by the AOJ in October 2014. The Veteran then filed a timely NOD to the Board in January 2015. A Statement of the Case (SOC) was issued in June 2016, followed by a timely VA Form 9 appeal. In July 2024, the Board dismissed the Legacy appeal, on the basis that the November 2019 AMA rating decision granted "the full benefit sought for entitlement to service connection for an acquired psychological disorder, effective March 5, 2019." For reasons described below, the Board finds that the current claim for an earlier effective date for a 70 percent evaluation for the Veteran's service-connected acquired psychiatric disabilities must be dismissed as it is not a valid legal appeal before the Board. This appeal stems from a disagreement with the AOJ's implementation of the Board's September 2023 decision regarding the effective date for the increased rating assigned for acquired psychiatric disabilities. An appellant cannot challenge the merits of a Board decision by expressing disagreement with the AOJ's implementing decision. See Harris v. Nicholson, 19 Vet. App. 345 (2005). In February 2024, the Veteran sought HLR of the September 2023 rating decision, requesting an effective date of December 16, 2013, for the assignment of a 70 percent evaluation for acquired psychiatric disabilities. The February 2024 request for HLR specifically references disagreement with the Board's September 2023 decision and singularly requests assignment of an earlier effective date. In Encarnacion v. McDonough, the Court addressed how the Board must address appeals of rating decisions that were issued to implement decisions of the Board. 16 Vet. App. 194 (2023). The Court first stated that 38 U.S.C. § 7104 provides that the Board's jurisdiction is wholly derivate of the Secretary's and that it establishes that "all questions in a matter under 38 U.S.C. § 511(a) shall be subject to one review on appeal to the Secretary," and "final decisions on such appeals shall be made by the Board." Id. at 9-10. The Court then noted that, pursuant to 38 U.S.C. § 511(a), a Board decision is deemed the "final and conclusive" determination of the Secretary as to any discrete issue decided in that decision. Id. at 10. With these statutory provisions in mind, the Court then found that a "pure" implementation of a Board decision cannot be regarded as a decision "affecting the provision of benefits" under 38 U.S.C. § 511(a) and, thusly, such decisions are not appealable to the Board-which had already rendered the Secretary's final determination on the issue in question. Id. The Court referred to such implementations as purely ministerial in nature, as opposed to decisions capable of being appealed through the filing of a NOD. Id. at 11. Applying Encarnacion to the instant case leads the Board to conclude that the September 2023 rating decision was a purely ministerial implementation of the September 2023 Board decision which assigned an initial 70 percent evaluation of the Veteran's service-connected psychiatric disabilities. When the Veteran, who was represented by a private attorney, sought HLR of the September 2023 rating decision, which was a purely ministerial decision of the AOJ, the AOJ should have declined this. Instead, the AOJ issued an HLR rating decision, which the Veteran appealed. This was not proper, and while the issue was certified to the Board, the Board must dismiss it for lack of jurisdiction. Encarnacion also suggested that in an instance such as this, the Board should consider whether the NOD should be read as a motion for reconsideration. In this case, the Board does not consider the Veteran's NOD, received by VA in May 2024, to be a Motion for Reconsideration to the September 2023 Board decision. Here, the Veteran was represented by a privacy attorney who has had a long history representing Veterans before the Board. As such, the Board presumes that the attorney was competent in its knowledge of the Board's practices and of Veterans disability law, to include the proper channels to file a Motion for Reconsideration to a Board decision. 38 C.F.R. § 20.1002 Rule 1002 - Filing and disposition of motion for reconsideration - is the legal authority providing the specific requirements for seeking reconsideration of a Board decision. A Motion for Reconsideration must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision, or decisions, to be reconsidered. It must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable Board of Veterans' Appeals decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion. (Continued on the next page) ? Here, the NOD, or any of its accompanying correspondence, did not meet these requirements for a proper filing of a Motion for Reconsideration. For the reasons articulated above, dismissal of the issue is appropriate. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bastin, Bardia 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.