190902-29126

• Court: Board of Veterans' Appeals
• Decided: May 29, 2020
• Docket: 190902-29126
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 05/29/20 Archive Date: 05/29/20

DOCKET NO. 190902-29126 DATE: May 29, 2020

ORDER

The appeal is dismissed.

FINDINGS OF FACT

1. In an April 2020 decision, the Board denied the Veteran’s claim for an effective date prior to May 18, 2016 for the award of a total disability rating based on individual unemployability (TDIU), which stemmed from an appeal of a November 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

2. In an April 2020 decision, the Board denied the Veteran’s claim for an effective date prior to May 18, 2016 for the award of a 100 percent disability rating for major depression with anxious distress, insomnia, psychotic features, alcohol use disorder and posttraumatic stress disorder (PTSD), which stemmed from an appeal of a November 2019 rating decision by a RO.

CONCLUSIONS OF LAW

1. Due to an April 2020 Board decision adjudicating the claim on its merits, no error of fact or law remains to be adjudicated with respect to the issue of entitlement to an effective date prior to May 18, 2016 for the award of TDIU. 38 U.S.C. § 7105 (2012).

2. Due to an April 2020 Board decision adjudicating the claim on its merits, no error of fact or law remains to be adjudicated with respect to the issue of entitlement to an effective date prior to May 18, 2016 for the award of a 100 percent disability rating for major depression disorder, alcohol use disorder and PTSD. 38 U.S.C. § 7105.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1989 to April 1990.

This matter comes before the Board of Veterans’ Appeals (Board) following July 2019 rating decision by a RO. He timely appealed this decision by filing a September 2019 Decision Review Request, electing the Direct Review lane.

1. The issues of entitlement to an effective date prior to May 18, 2016 for the award of TDIU; and an effective date prior to May 18, 2016 for the award of a 100 percent disability rating for major depression disorder, alcohol use disorder and PTSD.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105.

In the present case, the Board issued a decision in April 2020 denying an “effective date, prior to May 18, 2016, for the grant of a 100 percent disability rating for major depression with anxious distress, insomnia, psychotic features, alcohol use disorder, and [PTSD]” and an “effective date, prior to May 18, 2016, for the grant of [TDIU].” Those claims stemmed from a November 2019 rating decision by the RO, which the Veteran appealed by submitting a November 2019 Decision Review Request, both of which occurred subsequent to the initiation of this instant appeal.

Although this appeal and the appeal stream addressed in the Board’s April 2020 decision originated from separate rating decisions issued by the RO, the scope of the issues appealed are identical. Most importantly, the underlying allegations of error of fact or law are the same. Consequently, the Board’s April 2020 decision adjudicated all errors of fact or law with respect to the claims herein. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that the concept or res judicata requires that there be only one valid decision on any adjudicated issue or claim). As such, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these claims and they are dismissed.

M. Donohue

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board G. Suh, 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.