UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 10-582

J A Y A. B O Y D , A P P E L L

A N T ,

V

. R O B E R T A. M C D O N

A L D , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.

On Appea l from the B oard of Veter ans' Appea ls (Argued May

21, 2014 Dec ided Aug ust 5, 2014)

Thomas J. Ree d, of Wilm ington, De lawar e, wa s on the brief for the a ppellant.

Ronen Morris , with whom W ill A. Gunn , Gene ral Counsel; Ma r y A n n F lynn , Assistant Gene ral Counsel; and Carolyn F

. W a s h in g to n , D e p uty A s s is ta

n t Gene ral Counsel, all of Washington, D.C., were on the brief

for the a ppellee.

Be fore KASOL D, Chief Judge , MOORMAN and B ARTL EY, Judges

. MO ORMAN, Judge : The appellant, J ay A. Boy d, seeks revie w of two decisions of the Boa rd of Veter ans' Appea ls (B oard) t hat stem from his attempt to obtain an eff ective date ear lier than May 26, 1999, for the g rant of a 30% disability rating for postinflammatory hy popigme ntation of the fac e, back, chest, and abdomen: (1) A J une 11, 2008, Boa rd decision that deter

mined that Mr. Boy d failed to file a timely Substantive Appea l reg arding the orig inal April 1997 VA reg ional office (RO) decision that assig ned an initial 10% disability rating, ef fective from Marc h 26, 1990; and (2) an Aug ust 20, 2009, Boa

rd decision denying an eff ective date ear lier t h an M ay 2 6 , 1999, for a 30% rating

. At the o u t s et , we note that this case involves a complex proce dural picture involving two claim streams. The first beg an with a Marc h 1990 claim to reope n. The second beg an when the RO deeme d untimely a Fe bruar y 2000 Substantive Appea l filed in the first claim stream but then trea ted that Substantive Appeal a s a cla im for an incr ease d rating

.This case was sent to a panel to addre ss whether matters previously viewed by the Court to

be inext rica

bly intertwined and rema

nded may subsequently be adjudicate d separ ately by the Boa rd. We hold that, unless expli citly stated otherwise in a Court or der, the Boa rd reta ins the authority

to adjudicate matters separ ately

. Acc ording ly , Mr. Boy d is require d to appea l the 2008 Boa rd decision for this Court to revie w the Boa rd' s deter mination reg arding the untimeliness of th e Substantive Appea l even though the Boa rd, in the same decision, rema nded the matter of an ear lier eff ective date for the 30% rating

. Ba sed on the circ umstances here , we also hold that the finality of the 2008 Boa rd decision was abate d and Mr. Boy d' s appea l from that dec ision is t here fore prema ture, a nd we will dismiss the appea l from that decision. Be cause Mr. Boy d has not shown err or in t h e 2 009 Boa rd decision, the Court will aff irm that decision. The Court's aff irmance of t h e 2 0 0 9 Boa rd decision does n ot aff

ect Mr. Boy d' s pursuit of an ear lier eff ective date for service connec tion for hy popigme ntation or a rating highe r than 10% based on the first claim stream–i.e., the Marc h 1990 claim that is the subject of the 2008 Boa rd dec ision.

I. F ACTS Mr. Boy d serve d in the U.S. Army from April 1968 to Marc h 1970 and from September 1979 to September 1982, including se rvice in the Republic of Vietnam. Record ( R.) 2399, 2401, 2531. Shortly afte r his discharg e in 1982, he filed a claim for service connec tion for hy popigmen t ation, which was denied. I n Marc h 1990, he soug ht to reopen the claim, and a n April 1997 RO decision
g rante d service connec tion for his skin condition and assig ned a 10% disability rating , eff ective from Marc h 26, 1990. R. at 2321-26. I n 1997, M r. Bo y d submitt ed a Notice of Disag ree ment (NOD ), contesting his initial disability rating and the eff ective date o f service connec tion, but, in Marc h 1999, the R O i ssued a Statement of the Case (SOC) continuing Mr. Boy d' s disability rating and eff ective date. R. at 2215- 2 2 , 2243. I n Fe bruar

y 2000, Mr. Boy d filed a Substantive Appea l ag ain challeng ing his init i al disability rating and the eff ective date of service connec tion. R. at 2200-01. I n a Marc h 2000 letter, howeve r, the RO deter

mined that the Fe bruar

y 2000 Substantive Appea l was untimely and instead construed it as a claim for an incre ased rating

. R. at 2199. This cre ated the two claim streams noted
at the outset: One ar i s i n g fr o m the 1990 claim to reope n the claim for service connec tion for

2hy

popigme ntation, and one arising from the Fe bruar y 2000 claim for an incre ased rating , as construed by

the RO. As to the first claim stream, in M ay 2000, Mr. Boy d filed an NOD challeng ing the RO' s deter mination that his S ubstantive Appea l relating to his initial disability rating and ef fec tive date of service connec tion was unt i m el y

. R

. at 2168. I n the NOD, Mr. Boy d stated that he had been misinformed by a VA counselor as to the amount of time he had to submit his appea l to the Boa rd, which, he asser

ted, had the eff

ect of tolling the Substantive Appea l period. Wit h reg ard to the second claim stream, in J u l y 2 0 0 0 , Mr. Boy d filed a statement in support of claim to which he attache d, inter alia, private medical rec ord s from May 26, 1999. R. at 2150, 2166. Shortly there afte r, t h e RO awa

rded an incre ased disability rating of 30% for hy popigme ntation, eff

ective from May 26, 1999. R. at 2150-51. Subsequently , Mr. B oy d filed a Substantive Appe al in which he acc epted the 30% incre ased rating , but soug ht an eff ective date ear lier t h an M ay 1 9 9 9 for his incre ased r ating . R. at 2136-38. The two claim streams wer e ad d ressed toge ther in a November 2002 Boa rd decision, in which the B oard ( 1) dete rmined, as to the f irst claim stream, that a timely Substantive Appeal ha d not been f

iled rela ting to the initial 10% rating a nd eff ective date; and (2) denied, a s to the second claim stream, an eff

ective date ear lier than May 26, 1999, for Mr. Boy d' s incre ased 30% rating

. R. at 1987-2000. The Boa

rd, howeve r, d i d n o t ad d ress Mr. Boy d' s contention that tolling of the Substantive Appea l period was war rante d based on incorre ct information g iven by a VA claims counselor c oncer

ning the filing de adline. I n October 2007, this Court vacated the November 2002 Boa rd decision with respe ct to both deter minations and rema

nded the matters to the Boa rd for further proce eding s. Boyd v. Mansfield , No. 03-1508, U.S. Vet. App. L EXI S 1803 (Oc t. 22, 2007) (mem. dec.) ; R. at 51-65. As to the first claim stream, the Court direc ted the Boa rd to discuss the potential applicability of equitable tolling
to the 60-day period for filing a S ubstantive Appea l. As to the second claim stream, the Court explained that the Boa

rd' s decision on the Subs t an t i v e Appeal issue might have a "sig nificant impact" on the matter of an ear lier eff ective date for Mr. Boy d' s 30% disability rating and, there fore , conclude d that the ear lier-e ffe ctive-date issue "is inext rica bly intertwined with Mr. Boy d' s claim that he filed a timely Substantive Appeal." R. at 59.

3Of note, approximately two months befor e the Boa rd issued the J une 2008 decision now on appea l, Mr. Boy d notified VA that his addre ss was "Apt A, 209 Halstea d, Coppe ras Cove, Texas, 76522." R. at 885. Approxim at el y t wo wee ks later, on April 18th, howeve r, Mr. Boy d ag ain
contac ted VA, and VA noted that Mr. Boy d repor ted his addre ss as "3473 L ions Gate Ct, L ithonia, Geor g ia 30038." R. at 883. I n the J une 2008 decision, the Boa rd found, with respe ct to the first claim stream, that Mr. Boy d' s Substantive Appea l rela ting to his initial 10% rating and eff ective date was untimely and that equitable tolling was not war rante d. Acc ording ly , the Boa rd denied "the appea l on that issue." As
to the second claim stream, the Boa rd found re m an d was war rante d reg arding an eff

ective date

ear lier than May

1999 for the 30% rating

. The Boa rd' s cover letter enclosing the J une 2008 decision was addre ssed to "1535 ML K Dr., Copperas Cove, TX 76522," the addre ss on file for Mr. Boy d prior to April 2008. R. at 30. The J une 2008 Boa rd decision was returne d to the Boa rd as und el i v er ab l e. On J uly 8, 2008, the Boa rd instructed the Waco, Texas, RO to asce rtain Mr. Bo y d 's co rr ect addre ss and rese nd the Boa rd decision to him. R. at 85. On Aug ust 13, 2008, the RO sent a copy of the J une 2008 Boa rd decision
to Mr. Boy d at " Apt 1 , 209 E Halstea d, Copperas Cove, TX 76522." R. at 84 (empha sis ad d ed). Appar ently t h i s letter was not returne d as undeliverable notwiths tanding the facts that Mr. Boy d' s previous addre ss was at " Apt. A , 209 E. Halstea d," and, most signific antly , that Mr. Boy d' s addre ss at the time was in L ithonia, Geor g ia. Notably , VA previously used "A pt. A," not "A

pt. 1," in sending notice to Mr. Boy d and in rec ording his addre ss. R. at 1449 (Jan. 2008 90-Da y L etter) , 885 (Apr. 3, 2008 Report of Contact), 83 (VA databa se scre enshot). There is no indication in the rec ord that the RO or the B oard e ver se nt the J une 2008 B oard de cision to the L ithonia, Georg ia, addr ess. Subsequently , on Fe bruar y 27, 2009, the RO rec eived a statement from Mr. Boy d in w hich he disag ree d with the Boa rd' s J une 11, 2008, decision, and he addre ssed both claim streams. As to the first claim stream, he asser ted err or in the Boa

rd' s deter mination that there was no proof that he had rec eived inacc ura t e information from VA reg arding the filing deadline for his Fe bruar y 2000 Substantive Appea l and ref err ed to his signature on a VA sign- in sheet with both secur ity staff and

4VA on the day he spoke with a VA claims counselor. R. at 71-72. As to the second claim stream, 1 he stated that he believed he was entitled to an eff ective date ear lier than May 26, 1999, for his 30% rating . R. at 72. Acting on the J une 2008 Boa rd remand of the m atter of an effec tive d at e earlier than May 1999 for the 30% rating

–the second claim stream, the Appea ls Ma nag ement Center (AMC) issued

an April 2009 Supplemental Statement of the Case (SSOC) continuing the denial of an earlier eff ective date. R. at 68. The Secre tary took no action on Mr. Boy d' s Fe bruar y 2009 statement with
respe ct to the first claim stream; specific ally , the Secre t ar y did not addre ss whether the Fe bruar y 2009 statement wa s a motion for rec onsideration of the J une 2008 Boa rd finding untimely Mr. B oy d' s Substantive Appeal as to the e ffe ctive date of ser vice c onnection and the 10% ra ting. I n Aug ust 2009, the Boa

rd issued a dec ision addressing both c laim stre ams. As to the first claim stream, the Boa

rd conclude d that the J une 2008 B oard de cision was final on the issue of the timeliness of t h e S u b s t an tive Appea l. The Boa rd did not addre ss the veter an' s Fe bruar y 2009
statement asser

ting err or in the J une 2008 Boa rd decision. Wit h respe ct to the second claim stream, the B oard de nied an e ffe ctive date ear lier than May 1999 for Mr. B oy d' s 30% ra ting. R. at 3-15. I n Fe bruar

y 2010, Mr. Boy d filed pro se a Notice of Appea l (NOA ) in this Court, stating that he "disa g ree [d] with the Boa rd of Ve t erans['] Appea ls." That NOA was dismiss ed by the Court, howeve r, pursuant to Hende rson v. Peak e , 22 Vet.App. 217, 221 (2008), beca use it was filed more than 120 day s afte r the Aug ust 2009 Boa rd decision. See May 21, 2010, Orde r. Mandate issued in Aug ust 2010.

A lthoug h Mr. Bo y d referre d to VA ' s " letter dated July 11 , 20 08 ," it is clear from the lang uag e in his statem ent 1 that he is quoting from the J un e 20 08 Bo ard decisio n. He sp ecifically quotes la ng uag e from

pa ge 11 , p aragrap h 3, o f the Bo ard de cision.
5Subsequently , in Fe bruar y 2012, Mr. Boy d filed pro se a motion to rec all manda t e. Mr. 2 Boy d arg ued the merits of t he S ubstantive Appea l issue decide d in the J une 2008 Boa rd decision,

as well as the merits of the ear lier-e ffe ctive-date issue decide d in the Aug ust 2009 Boa rd decision. Fe b. 29, 2012, Motion to Reca ll Mandate at 1. Acc ording ly , his motion to rec all mandate soug ht to reinstate a

n appea l from both the J une 2008 and A ug ust 2009 Boar d decisions. Responding to the motion, the Secre tary informed the Court that Mr. Boy d had filed a timely motion for Boa

rd re consideration of the Aug ust 2009 Boa rd decision and that, althoug h the Boa rd Chairman denied that motion in a September 29, 2010, decision, the Chairman' s decision was mailed
to Mr. Boy d at an outdated addre ss. The Secre tary there fore was "not opposed to the Court's rec all 3 of mandate a

nd acc eptanc e of the NOA." Apr. 16, 2012, Secre tary ' s Response. The Secre tary did
not addre ss Mr. Boy d' s contentions reg arding the J une 2008 Boa rd decision. I n May 2012, the Court
g rante d the motion to rec all mandate and withdrew its entry of judgme nt and 2010 dismiss al order

. Following the reinstateme nt of Mr. Boy d' s appea l, the parties completed br iefing in Ma rch 2013. I n September 2013, the Court directe d that the S ecr etar y file a supplement to the record on
appea l to include the Boa rd' s cover letter to the J u n e 2 0 0 8 Bo ard decision and noti ce of appellate rig hts. The case was then submitt ed to a pan el , M r. Bo y d reta ined counsel, the parties filed substitut e brie fs, and this Court hear d oral a rg ument.

II. P ARTIES' ARG UMENTS On appe al, the appe llant challeng es bot h the J une 2008 and A ug ust 2009 Boar d decisions. He makes two m ai n ar gu m ents : First, he maintains that the J une 2008 Boa rd decision did not become final until the issue reg arding an ear lier eff ective date for his inc rea sed rating was decide d

Mr. Bo y d filed his m otio n to recall m andate w ithin 12 0 day s of this Court' s Miscellaneous Ord er No. 04 -12, 2

w hich allow ed any app ellant w hose app eal w as dism issed pursuant to this Court' s decisio n in Hend erson v. Pea ke , supra , to file a m otio n to recall man date pr em ised on an argum ent that the 12 0-day per iod for fili ng the NOA shoul d be equitably tolled in his or her case. Misc. Ord er No. 04 -12 (U.S. Vet. A pp

. Feb. 7, 20 12 ). T he m iscellaneous or der w as issu ed based on the U .S. Suprem e Court' s decisio n in Hend erson v. Sh insek i , 1 3 1 S

. Ct. 11 97 (2 01 1) , rev'g 58 9 F.3d 12 01 (Fed

. Cir. 20 09 ), w

hich held that the 12 0-day lim it to file an NOA–althoug h an im po rtant pr oced ural rule–w as not j urisdictional, and subsequent ly , in Bov e v

. S h inseki , 25 Vet.App. 13 6 (2 01 1) , this Court held that " the im po rtant pr oced ural rule" is subje ct to equitable tolling.

Bec ause the Bo ard Ch airm an' s decisio n deny ing reco nsi der ation w as attached to the respo nse, Mr. Bo y d w as 3 notifi ed of the Bo ard Chairm an' s denial as o f th e d ate the resp onse w as served.
6in the Aug ust 2009 Boa rd decision beca

use this Court's October 2007 decision had deeme d the
matters inext rica

bly intertwined and the Boa rd, there fore , had no authority to separ ately adjudicate the issues. Alterna tively , he asser ts that, following the Court's 2007 rema nd decision, he was entitled to spe cific notice of the Boa rd' s intent to separ ate the issues prior to the Boa rd' s decision. Second, he arg ues that the finality of the J une 2008 Boa rd decision was abate d beca use the Boa

rd mailed that decision to him at the wrong addre ss a nd, there fore , the 120-day period to a ppeal to this Court did
not beg in to run unt il he rece ived not ice of the 2008 d ec i s i o n. Reg arding the August 2009 Boa rd decision, the appellant essentially challeng es the May 1999 assig ned eff ective date for his incre ased rating , arg uing tha t the Boa rd fa iled to addre ss medical repor ts f rom 1982 throug h 1996 "show ing whole body

involvement" of

loss of pigme ntation. The Secre tary contends that the Court lacks jurisdictio n to revie w the J une 2008 Boa rd decision beca

use it was a final, appea lable decision, and the appellant' s 2010 p ro s e NOA was untimely as to this Boa

rd decision. The Secre tary conce des that the J une 2008 decision was mailed
to the appellant at the wrong addre ss but asser ts that the appellant "did in fac t rec eive and had actua l

n o t i ce of the J une 2008 decision" when it was rema iled to him in J uly 2008. I n support, the Secre tary arg ues (1) the rema iling was not returne d as undelivera ble; (2) the appellant later ref ere nced the Boa

rd decision in the Fe bruar

y 2009 statement to the RO; and (3) the appellant mere ly contends that the Boa

rd decision was mailed to the wrong addre ss but does not asser t that he did not
actua lly rec eive it af

ter the r emailing

. The Secre tary further arg ues that the Boa rd is not require d to provide any specific notice of its intent to separ ate issues previously found by the Court to be inext rica bly intertwined and maintains that it was within the Boa rd' s authority to separ ately decide the claims or issues beca use (1) the Court did n o t co n cl u d e t hat a decision on the Substantive Appea l issue depende d on the dispositi on of the ear lier-e ffe ctive-date issue, only vice versa –i.e., tha t th e e a r li e r - e f f e c ti v e - date issue depende d on the Substantive Appea l issue–and, there fore , the issues did not have an interdepe ndent (mutually depende nt) rela tionship; and (2) a Court deter mination that two issues are inext ricably intertwined that is made for purposes of judicial economy is not binding on the Secre tary

. Finally , the Secre tary asser

ts that the eff

ective date for the appellant' s incre ased- rating claim, which he filed in Febr uary 2000, can be no ear lier than one y ear prior to the date of the c laim.

7III. ANALYSIS A. J urisdiction: Scope of NOA The Court does not have jurisdiction to revie w a Boa rd decision u n l es s an NOA as t o that Boa rd decision has been filed with the Court. This Court has the authority to de termine whether a timely NOA has been filed. See Fithian v. Shinseki , 24 Vet.App. 146, 157 (2010); see also H ayre

v. Principi , 15 Vet.App. 48, 57 (2001) (Kra mer, C.J ., concur

ring in part and dissenting in part as to dismiss al) (stating that "this Court has the responsibility to deter mine for itself whether it has jurisdiction to consider a claim" ). "T hese deter minations are not dicta, but are ess en t i al to the decision of t h e C o u rt as it exercises its appellate revie w authority ." Fithian , 24 Vet.App. at 157. As the C ourt has previously made clear, t h e C o u rt "ha s an independent dut y to deter mine its own jurisdiction, even if the matter is not raised by the parties." Posey v. Shinseki , 23 Vet.App. 406 , 407 (2010) ( citing Clemons v. Shinsek i , 23 Vet.App. 1, 3 ( 2009)). Acc ording ly , befor e the Court can tu rn t o t h e question of the timeliness of the NOA, the Court must first deter

mine whether the pro se NOA rec eived by the Court on Fe bruar y 22, 2010, is an appeal not only of t he August 2009 Boa rd decision, but also of t he June 2008 Boa rd decision. 4 I t is well settled that the adequa cy o f an NO A must be deter mined with two interpre tive principles in mind: (1) NOAs are to be li b er al ly construed, and (2) pro se pleading s are to be liberally construed. Durr v. Nicholson , 400 F.3d 1375, 1380 (F ed. Cir. 2005). The Fe dera l Circuit interpre ted Rule 3(c) (2) of this Court's Rules of Practice and Procedur e (Rules) to require that "the issue of whether a Boa

rd decision has been identified should be deter mined by ref

ere ncing the surrounding circ umstances." Id. The Fe der al C i rcuit also deter mined that the lang uag e of Rule 3(c) (2) was expressly adopted to incorporate the holding in Calma v. Brown , 9 Vet.App. 11 (1996), that an NOA"' need not contain a literal st atement that a [ Boa rd] decision is being a

ppeale d to the Court, as long as the intent to seek Court revi ew is clea r from the document as a whole and the circ umstances of its filing with the Court.'" Durr , 400 F.3d at 1381 (quoting Calma , 9 Vet.App. at 15, and In Re R ules of Practice &Proc. , 2002 U.S. Vet. App. Claims L EXI S 704, Misc. No. 1-02 (Ve t. App. Sept. 17, 2002)). The Fe dera l Circuit thus concluded tha t "a Boa rd dec ision need only

T he par ties do not d ispute that th e NOA seeks to app eal the Au gu st 20 09 B oar d d ecision. 4
8b e rea sonably identified in light of the surrounding circ umstances." Id

. Quoting Int er ca r g o Insurance Co. v. United States , 83 F.3d 391, 395 (F ed. Cir. 1996), the Fe dera l Circuit also noted that it is "' not the case

. . . that any

. . . notice that does not strictly confor m to the "fo rm and manner "
presc rib ed i n the reg ulation is ineffe ctive.

. . . [N] ot all deviations from the require ments of the
statute or reg ulation would aff ect the interests that the statute and reg ulation are desig ned to protec t.'" Durr , 400 F.3d a t 1382. Her e, in his pro se NOA, the appellant stated, in toto: "I dis agr ee with the Boa rd of Veter ans['] Appea ls and I am appea ling to the Court of Appea l[ s] to overturn the Boa rds' decision." Although the NOA did not identify any Boa rd decision by

date, a liberal c onstruction of the NO A ref lects the appellant' s intent to appea l both the J une 2008 and Aug ust 2009 decisions. That one of the Boa rd decisions the appellant was appea ling was the J une 2008 Boa rd decision cry staliz ed when he filed his pro se motion to rec all mandate in Fe bruar y 2012, and later his informal brief, including
arg uments reg arding the merits of the Substantive Appea l issue decide d i n the J une 2008 Boa rd decision. 5 Acc ording ly , the Court holds, throug h a liberal construction of the appellant' s pro se NOA– which itself is broadly worde d–and the circ umstances surrounding the filing of the NOA–whic h include the statements made in the appellant' s motion to rec all mandate– that the appellant appea led both the Boa

rd' s J une 2008 and Aug ust 2009 decisions. See Durr , 400 F.3d at 1381. Consequently , the Court has jurisdiction both to deter mine whether the 2008 Boa rd decision is a final decision for purposes of Court r eview a nd to reviewthe 2009 B oard de cision.

B. Timeliness of

NOA Although the filing of an NOA is a jurisdictional re quirement, the timelyfiling of an NOA is no longe r a jurisdictional issue. The 120-day judicial ap p ea l period nonetheless rema ins an important proce dural rule and is subject to the Court's assessment of equitable tolling when equitable tolling is raised by an appellant. See Bove , 25 Vet.App. at 140. Gene rally , in equitable tolling case s, circ umstances such as mental illness or filing the notice of appea l with the wrong tribunal preve nt

A lthoug h the appe llant' s inf or m al br ief w as later substitu ted b y a b rief filed by

co un sel, the issu es identified 5 in the inf or m al br ief, inclu ding those related to the tim eliness of his Substan tive A pp eal, are used to deter m ine the scop e of the app ellant' s NOA an d not the m erits of the issu es on ap peal.
9a timely filing. See Barrett v. Principi , 363 F.3d 1316, 1317 (F ed. Cir.2004); Ricke tt v. Shin seki ,

26 Vet.App. 210 ( 2011) (e n banc) ; see also Chec o v. Shins eki , 748 F.3d 1373, 1376 n.1 ( Fe d. Cir. 2014) (" ' As a g ener al matter, equit ab l e t olling pauses the running of, or "tolls," a statute of limit ations when a litigant has pursued his rig hts diligently but some extraordi n ar y circumstance
preve nts him from bring ing a timely action.' " (quoting Lozano v. Montoya Alvarez , __ U.S. __, 134 S. Ct. 1224, 1231-32 (2014)) ); Sneed v. Shinseki , 737 F.3d 719, 726 (F ed

. Cir. 2013) (" Equitable tolling is not ' limit ed to a small and closed set of fac tual patterns' " but rathe r is decide d on a "' case by -ca se basis.' " (quoting Mapu v. Nicholson , 397 F.3d 1375, 1380 (F ed. Cir. 2005), and Holland v. Florida , 560 U.S. 631, 650 (2010)))

. Other circ umstances may also aff ect the start and running of the 120-day j u d i ci al appeal period that the Court may consider in deter mining whether a Boa rd decision beca me final for
purposes of appea l and whether the 120-day period to file an NOA expired befor e the NOA was filed. F or ex ample, relevant here are principles associate d with the presumption of re g ularity that attache s t o a Bo ard mailing of a Boa rd decision that starts the clock on the 120-day period. Additionally , once sta

rted, the c lock may

stop and the finality

of the B oard de cision be abated i f a claimant files a motion for Boa rd re consideration, Rosler v. De rwinski , 1 Vet.App. 241 ( 1991), or

a document that expresses disag ree ment with a Boa rd decision, Ratliff v. Shinseki , 26 Vet.App. 356 (2013). For the rea sons stated below, as t o t h e 2 0 0 8 Boa rd decision, the Court conclude s that the appellant' s NOA, when filed, was prema ture and rema ins prema ture as of this date. As to the 2009 Boa rd decision, the NOA was also prema ture beca use when it was fi l ed t h e Secre tary had not notified the appellant that his timely motion for Boa rd re consideration of the 2009 Boa rd decision h ad been denied. Subsequently , upon the Boa rd Chairman' s denial of the motion for Boa rd

rec onsideration, the appellant' s NOA beca me eff ective. See W

achter v. Brown , 7 Vet.App. 396, 397 (1995) (per curia

m order) (holding that a prema ture NOA beca me eff ective upon the Chairman' s denial of a

motion for Boa

rd re consideration).

10i. Improper Mailing of the June 2008 Board Dec ision

I n support of his arg ument that notice of the J une 2008 Boa rd dec i s i o n was mailed to the
wrong addre ss, the appellant asser ts tha t the Boa

rd mailed its de cision to a Copperas Cove, Texas, addre ss when an April 18, 2008, VA repor t of contac t showed that he had repor ted his new addre ss to be in L ithonia, Geor g ia. Reply at 4 (citing R. at 882). The Secre tary responds that the appellant "ha d actua l notice

. . . no later than J uly 2008" of the J une 2008 decision. Secre tary ' s Surreply at 2. The rec ord supports the appellant 's arg ument, and the Secre tary has not demonstrated that the appellant ha d actua l notice prior to F ebrua ry 2009. Pursuant to 38 U.S.C. §§ 5104(a) and 7104(e) , the Boa rd must "pr omptly mail a copy of its written decision to the [appellant]

. . . at the last known addre ss of the appellant." Clark v. Principi , 15 Vet.App. 61, 63 ( 2001). B ased on the presumption of reg ularity , the C ourt presume s that "' the Secre tary proper ly discharg ed his officia l duties by mailing a copy of a [Board] decision to the last known addre ss of the appellant

. . . on the date that the decision was issued.' " Clarke v. Nicholson , 21 Vet.App. 130, 133 (2007) (quoting W oods v. Gober , 14 Vet.App. 214, 220 (2000))

. I n order for this presumption to attach, VA must provide notice to the latest addre ss of rec ord for the claimant. Crain v. Principi , 17 Vet.App. 182, 186 (2003). This presumption is not absolute and m ay be rebutted with "c lear evidenc e that VA did not follow its reg ular mailing prac tices or that its prac tices

wer e not re g ular." Id

. The mere asser

tion of nonrec eipt by an appellant is not enoug h to establish the clea r evidenc e neede d to overc ome the pre sumption of regularity in the m ailing of the B oard de cision. Id .; Davis

v. Principi , 17 Vet.App. 29, 37 (2003). Ho we v er , the presumption of reg ularity may be rebutted wher e there is (1) evidenc e that VA used an incorre ct addre ss on the Boa rd mailing, or (2) evidenc e that the mailing was returne d as undelivera ble and there wer e other possible and plausible addre sses available to VA at the time of the Boa rd decision. See Clarke , 21 Vet.App. at 134 (noting that "V A' s

use of an incorre ct addre ss is often conseque ntial to delivery

. Thus, we have found the exis tence of clea r evidenc e to rebut the presumption of reg ularity when VA addre ssed commun i cations to a wrong street na

me, wrong street number, or wrong Z I P c ode in circumstanc es indicating that such

err ors wer e conseque ntial to delivery .") (collec ting case s); Crain , 17 Vet.App. at 187 (" VA' s use of

an incorre ct addre ss f

or a claimant constitutes the ' clea r evidenc e' neede d to r ebut the presumption

11of reg ularity of mailing." ); Davis , 17 Vet.App. at 37 (holding that to rebut presumption of reg ularity

in mailing, the ap p el l an t m u s t establish both that mailing was returne d as undelivera ble and that there wer e other

possible and plausible addr esses available to VA)

. Once the presumption is rebutted, the Secre tary has the burden to show that the Boa rd decision was mailed in the appropr iate manner "or that the appellant actua lly rec eived a copy of the decision." Sthele v. Principi , 19 Vet.App. 11, 19 (2004); see Fluker v. Brown , 5 Vet.App. 296, 298 (1993). Acc ording ly , the 120-day period of 38 U.S.C. § 7266(a) does not beg i n t o ru n u n t i l the defe ct in mailing is cure d by a proper mailing or proof of actua l rec eipt. Id. ; see Clark , 15 Vet.App.
at 67 (holding that the date of actua l rec eipt was the date on which the 120-day period of 38 U.S.C. § 7266(a) beg an to run); Tablazon v. Brown , 8 Vet.App. 359, 361 (1995) (holding that, "w here VA has failed to proce durally comply with statutorily mandated require ments, a claim does not become final for purposes of appea l to the C ourt" an d t hus, "the re is no final Board decision befor e us for revie w" ). The Court revie ws de nov o wh et h er clea r evidenc e exis ts to rebut the presumption of
reg ularity

. Clarke , 21 Vet.App. a t 133. Her e, evidenc e sufficie nt to rebut the presumption is prese nt. I t is undisputed that the Boa rd initially mailed its J une 2008 decision to the appellant at an old addre ss–1535 ML K Drive, Copperas Cove, Texas–with the mailing returne d as undelivera ble and that other plausible addres s es wer e available to the S ecr etar

y at t he ti me. R. at 30, 85. Althou gh t h e S ecr etar y asser ts that the Board

rema iled the J une 2008 decision on Aug ust 13, 2008, the rema iling was ag ain to a superc eded–a nd
wrong –addre ss ag ain, i.e., "A

pt. 1, 209 E. Halstea d" instead of "A pt. A, 209 E. Halstea d," when his last known addre ss was " 3473 L ions Gate Ct., L ithonia, Georg ia 30038." The Secre tary has not demonstrated that the J une 2008 Boa rd decision was either mailed in the ap p ro p ri at e manner or that the appellant actua lly rec eived it. As noted above, althoug h the April 18, 2008, VA repor t of contac t establishes that the Geor g ia addre ss wa s the appellant' s last known addre ss at the time the Boa rd issued its J une 2008 decision, the Secre tary ' s orig inal mailing of the J une 2008 decision, as well as his Aug ust 13, 2008, rema iling, was to a Texas addre ss rathe r than the appe llant's a ddress in Ge org ia. 6

T he Secretar y asserts that the Court shoul d " assu m e" that the app ellant received the 20 08 Bo ard decisio n on 6 July 11 , 20 08 , and that the 12 0-day app eal per iod thu s ended on Novem ber 8, 20 08 , and the Febr

uary 20 09 letter " w as 12As to actua l rec eipt, the Secre tary arg ues that actua l rec eipt is demonstrated by the fac t that

(1) the rema iling was not returne d as undelivera ble, (2) the appellant later ref ere nced the Boa

rd decision in a Fe bruar

y 2009 statem en t t o t h e R O, and (3) the appellant mere ly contends that the Boa rd decision was initially mailed to the wrong addre ss but does not alleg e that he did not actua lly

rec eive the B oard de cision after it was rema iled. The first and third fac ts noted by the Secre tary fail to de monstrate actua l r ece ipt. As to the first fac t, it demonstrates, at best, that the Boa rd decision was rec eived by the occupa nt of Apar tment 1, 209 East Halstea d, and not returne d, or, if Apar tment 1 did n o t ex i s t , that the decision was delivere d to a differ ent apar tment, or that it was delivere d to the curr ent occupa nt of Apar

tment A , despite the incorre ct addre ss to Apar tment 1. As noted ear lier, Mr. Boy d d i d n o t live at a Texas addre ss at the time of the mailing. The Court holds that the Secre tary is not entitled to a presumption of rec eipt based on the mailing not having been returne d as undelivera ble wher e the mailing was not

corr ectly addre ssed to the claimant. The Secre tary has not met his burden of showing a subsequent
proper mailing. As to the third fac t, the S ec reta ry fails to appre ciate that the presumption of
reg ularity has been rebutted and that it is the Secre tary ' s burden–not the appellant' s–to show actua l

rec eipt. See 38 U.S.C. §§ 5104(a) (re quiring Secre tary to provide to a claimant timely notice of a decision af

fec ting the pr ovision of benef its); 7104(e)( 1) (pr oviding that the B oard "sha ll promptly mail a copy of its written decision to the claimant at the last known addre ss of the claimant" ); Sthele , supra. The second fac t establishes that the appellant had knowledg e of the 2008 Boa rd decision, but only as of Fe bruar

y 2009 and not nece ssarily sooner. See supra note 1. Where the evidenc e shows that the S ecr etar

y did not proper ly mail or remail the Board d ecision t o the appellant's last known addre ss, the Court will not assume actua l rec eipt of that decision until there is evidenc e of actua l

rec eipt. Acc ording ly , the Court holds that the ear liest point that the Secre tary can demonstrate the appellant had knowledg e of the J une 2008 Boa rd decision, and there fore , actua l rec eipt of it, is Fe bruar y 27, 2009, when M r. Bo y d submitt ed his statement to the RO in which he stated his

received m or e than 20 0 day s after July 11 , 20 08 ." Surreply at 5. T he Court notes t ha t , a t or al argum ent, upon being questioned, the Secretar y acknow ledged that the Bo a r d d e c i si on w as not rem ailed on July 8, 20 08 , as stated in the Secretar y ' s surreply , and that the letter of re m ailing to the app ellant is actually da ted Aug ust

13 , 2 00 8.
13disag ree ment with the J une 2008 Boa rd decision. See Hampton v. Nicholson , 20 Vet.App. 459, 461- 62 (2006) (" The unrebutted Report of Contact demonstrates actua l knowledg e of the contents of the May 2002 Boa

rd decision by the appellant on May 20, 2002, and there fore his timely rec eipt there of" and finding that "the appellant had actua l rec eipt of the Boa rd decision as of May 20, 2002, thus curing as of that date any defe ct in mailing." ); Davis and Clark , both supra

. Acc ording ly , the Court further holds that the 120-day judicial-ap p ea l period beg an to run on Fe bruar y 27, 2009. See Hampton , Davis , and Clark , all supra

.

ii. Abatement of Finality of June 2008 Board De cision Due to Potential Motion for Reconsideration As noted ab o v e, the finality of a Boa rd decision for purposes of appea ling to the Court is abate d upon a claimant' s fi l i n g o f a motion for Boa rd rec onsideration within the 120-day appea l period. See 38 C.F.R. § 20.1001(a) (2014) (motions for rec onsideration); Rosler , 1 Vet.App. at 243- 44. This Court has authority to deter mine whether a document may be a motion for rec onsideration. See F ithian , 24 Vet.App. a t 157; see also Ratliff , 26 Vet.App. a t 360-61. I n Ratliff , this Court acknow ledg ed the Secre tary ' s policy to tr eat all written expressions of disag ree ment with a Boa

rd decision filed at the RO as potential motions for Boa rd rec onsideration and to forwa

rd them for the Boa

rd to deter mine whether they are actua l motions for rec onsideration. 26 Vet.App. at 360-61. Th e p o l icy require s the ROs and the AMC to "quic kly identify possible [m otions for rec onsideration] and promptly forwa rd them to [t he Boa

rd]." VA A D J

U D I C A TI O N P R O C E D U R E S M A N U A L (M21-1 MR), pt. I , ch. 5, § G.33.c- d, quoted in Ratliff , 26 Vet.App. at 358. I n Ratliff , this Court held that when a written expression of disag ree ment with a Boa rd decision is filed at the RO during the 120-day period to file an NOA, it abate s finality of the Boa rd decision for purposes of appea ling to the Court until one of the following actions is taken: (1) T h e S ecr etar

y deter mines the writt en dis ag ree ment is an NOA and returns it to t h e claimant wit h i n formation conce rning the proper location to lodge an appea l or forwa rds it to the Court and so notifies the claima n t ; (2 ) the Board Chairman determine s the status of the docume nt, that is, whether it is considered a motion for Board reconsideration or not, and notifies the claimant of its determination ; or (3) the claimant files an NOA with the Court and, assuming that the Court become s awa re that prior to the fil ing of the NOA a wr itten disag ree ment was filed with the RO within the C ourt' s appea l period, determines that the wr itten disag ree ment was a misfiled NOA and not a motion for Boa rd rec onsideration. Cf. Posey [, supra ] and

14Boone [ v. Shinseki , 22 Vet.App. 412, 414 (2009)]; cf

. W achter v. Brown , 7 Vet.App. 396, 397 (1995) (per curiam order ) (holding that a prema ture NOA beca me eff ective upon the Chairman' s denial of a motion for Boa

rd re considera

tion).

We further

hold tha t if the Secre tary returns the written disag ree ment to the claimant or the Board determines that the written disag ree ment does not constitute a mot ion for Boar d rec onsideration, the Secre tary must noti fy the claimant that the Boa rd decision, as of the date of notification to the claimant, is now deeme d final and that the claimant has a new 120-day appea l period beg inning wi t h t h e d ate of the mailing of

the notification.

Ratliff , 26 Vet.App. a

t 360-61 (empha sis added). Her e, in Fe bruar

y 2009, the appellant submitt ed to VA a s t at em en t t h at indicated his disag ree ment with the 2008 Boa rd dec i s ion; specific ally , as t o the first claim s tream, he noted his disag ree ment with the Boa rd' s finding that equitable tolling of the 60-day Substantive Appea l period
was not wa

rra nted and state d that, contra ry to the Boa

rd dec ision, he had proof that he spoke with

a VA repr esenta tive during that period and it consisted of the "sig n in" roster with secur ity staff and with VA. R. at 71-72. As to the second claim strea m , h e s t ated that he was entitled to an ear lier eff ective date for his 30% rating

. Id

. This statement is a potential motion for Boa rd rec onsideration of the J une 2008 decision, which abate s the finality of the 2008 Boa rd decision fo r purposes of
appea l to this Court, until one of the ac tions noted in Ratliff is taken. Howeve r, none of the three actions noted above in the lang uag e quoted from Ratliff has y et

occur red. I ndeed, as noted above, the Secre tary took no action on the Fe bruar y 2009 statement to 7 the extent that it ref

ere nced the J une 2008 Boa rd decision. Be cause the 2 0 0 9 statement ref lects disag ree ment with the 20 0 8 Board decision and was filed with the RO within the 120-day appea l period, the 2009 statement abate d the finality of the J u ne 2008 Boa rd decision for purposes of
appea ling to this Court, and the abate ment continues until the Boa rd Chairman deter

mines whether the Fe bruar

y 2009 statement is a motion for Boa rd rec onsideration of the J une 2008 Boa rd decision. See Ratliff

, supra

. Acc ording ly , the 2008 Boa rd decision rema ined abate d when the appellant filed his NOA, and his NOAwas premature ly filed wit h respe ct t o this decision. See W achter , supra

.

We fu rther n ote that the w

ritten disagreem ent do es not ref lect an in tent to appe al to the Court an d therefore 7 i s no t a n N OA

. See Rickett , 26 Vet.App. at 21 9 (noting that a w ritten disagreem ent filed at the RO m ay constitute a m isf iled NO A if it reflected a clear

intent to app eal to the Court).

15Moreove r, the veter an' s Fe bruary 2 0 0 9 statement is a potential motion for Boa rd

rec onsideration of the J une 2008 Boa rd decision as to both claim streams: His p o tential Boa rd

rec onsideration motion specific ally mentioned both claim streams. R. at 71 (" [T] he information
g iven to me was inacc urate [,] which was the rea son I missed my due date [as to the Fe bruar y 2000 Sub s t an t i v e Ap p eal] .") ; 72 (" I believe[] I am entitled to [an] ear lier eff ective date than May 26[,] 1999[,] for the g ranting of a 30[%] disability evalua tion

. . . . ")

. To the extent the Fe bruar y 2009
statement expressed disag ree m en t wi th the decision on the first claim stream, the matter is still pending at VA awa iting ac t i o n p u rs u ant to Ratliff

. To the extent the Fe bruar y 2009 statement expressed disag ree ment with the J une 2008 Boa rd decision on the second claim stream, i.e., rema nd of the ear lier-e ffe ctive-date issue on the 30% rating , VA acte d on the statement by addre ssing its substance in the April 2009 SSOC t hat was issued in c onnection with the second claim stream (R. at 68), in the ensuing August 2009 Boa rd decision as to that issue once further rema nd action had been taken, and in the Boa rd Chairman' s subsequent, September 2010 denial of re considera tion of the 2009 Boa

rd decision. Cf. W

illiams v. Peak

e , 521 F.3d 1348, 1351 (F ed. Cir. 2008) (holding that "a subsequent final adjudication of a claim which is identical to a pe nding c laim that had not be en finally adjudicate d terminates the pending status of the ear lier claim" and this "la ter dispositi on, denying the claim on its merits, also decide s that the ear lier identical claim must fail" ) (citing Ingram

v. Nicholson , 21 Vet.App. 232, 243 (2007)) ; cf. also Charles v. Shinseki , 587 F.3d 1318, 1323 (F ed. Cir. 2009) (" [W ]hen the substance of a later- filed claim is addre ssed in an RO decision, the claimant

can infer that the ear lier-f

iled claim based on the same disability has also been adjudicate d.") (citing W illiams , 521 F.3d a t 1350). Acc ording ly , the NOA rema ins prema ture as to the J une 2008 Boa rd decision on the issues stemming from the first claim stream and the Court may not now consider the merits of those issues. Howeve r, t h e NO A, since its filing, has become eff ective as to the 2009 Boa rd decision and the i s s u es s temming from the second claim stream. I t is eff ective despite the nonfinal 2008 Boa rd decision beca

use, as discussed in the next section, the matters are separ ately appea lable to this Court. Following the Board Chairma n' s determination as to whe ther the F ebrua ry 2009 statement is a motion for Boa

rd rec onsideration of the J une 2008 Boa rd decision on the first claim stream, the

16appellant is entitled to a notice of appellate rig hts, including notice of a new 120-day judicial appea l

period be g inning with the da te of the notification's mailing

. Ratliff , supra

. C. W hether

the B oard Ma

y Separately

Adjudicate Matters Dee med I nextricably

I ntertwined by

the Court Although the appellant focuse s on the Boa rd' s J une 2008 decision in support of his arg ument that the Boa

rd lacke d authority to decide the Substantive Appea l iss u e s ep arate from the

ear lier-e ffe ctive-date matter beca use in the Court's October 2007 rema nd decision both matters wer e deeme d inext rica

bly intertwined, the J une 2008 Boa rd decision, as discussed above, is not on appea l. Neve rtheless, the a

rg ument applies equa lly

to the Boa

rd' s Aug ust 2009 decision. I n its Oc t o b er 2007 rema nd decision, t he C ourt direc ted t he Board to discuss the pot ential applicability of equitable tolling to the 60-day period for filing a Substantive A ppeal following the Marc h 1999 SOC. The Court further stated that the matter of entitlement to an eff ective date ear lier than M ay 26, 1999, for the 30% rating for hy popigme ntation "i s inext rica bly intertwined with the appellant' s claim that he filed a timely Substantive Appeal." R. at 59. The Court explained that, beca use it is possible that the Boa rd' s decision on the Substantive Appea l issue could have a "si gn ificant impact" on the claim for an ear lier eff ective date for the 30% disability rating for hy

popigme ntation, the Court will vacate the Boa rd' s decision in reg ard to the ear lier eff

ective date for hy

popigme ntation and rema nd the claim for
rea djudication.

Id

. Over all, the Court's 2007 memorandum decision addre ssed (1) the fi rs t cl ai m stream by

rema nding it for the Boa

rd t o deter

mine whether to l l i n g ap p lied to the S ubstantive Appea l period and (2) the s econd claim stream b y declining to make a decision at that time on the effec tive-date issue for the 30% rating assig ned for hy popigme ntation. As noted above , on rema

nd the Board in its J une 11, 2008, decision addr essed ( 1) the fir st claim stream by finding that the appellant' s Substantive Appea l rela ting to his initial disability rating and the eff

ective date o f service connec tion was untimely and that equitable tolling was not

war rante d, and (2) the second claim stream by rema nding the matter of an eff

ective date ear lier than May 1999 for the incre ased (30%) rating based on the Fe bruar y 2000 claim for incre ased rating

. The second claim stream returne d to the Boa rd in Aug ust 2009, and the Boa rd found that an effec tive date e arlier

than May

1999 for the 30% ratingwas not wa rra nted. R. at 3-15.

17The Court ag ree s with the Secre tary that the Court's 2007 deter mination that the issues wer e inext rica bly intertwined was rele vant onl y to the ex tent t hat i t provided support for its decision t o

rema nd the issue of an ear lier eff ective date for the 30% rating for purposes of judicial economy and prudenc e. See Tyrues v. Shinseki , 23 Vet.App. 166, 178-79 (2009) (en banc) (holding that "[i]f we find that the matter on appea l is inext rica bly intertwined with an issue or claim still pending befor e VA, the Court g ener ally

will de cline, for rea sons of judicial ec onomy or on prude ntial gr ounds, to review t h e merits of the claim or issue adjudicate d in the Boa rd decision" ), aff'

d , 631 F.3d 1380, 1383 (F ed. Cir. 2011), vacate d and remande d for reconsideration , 132 S. Ct. 75 (2011), reinstated

as modified , 26 Vet.App. 31 (2012) (per curiam order ), aff' d , 732 F.3d 1351 (F ed. Cir. 2013). The Court's 2007 decision held that judicial revie w of the Boa rd decision on the eff

ective date of the 30% rating was not war

rante d beca

use it was inext rica

bly intertwined with the Substantive Appea l issue being rema

nded in the same Court decision. Although rema nd on this basis was deeme d appropr iate

on the fac ts extant befor e and at the time of the Court's decision, the Court did not require the Boa rd
to adjudicate the matters toge ther. See Harris v. Derwinski , 1 Vet.App. 180, 183 (1991) (" This Court will neither revie w [Board] decisions in a piece meal fashion nor unnece ssarily interfe re wi t h the Depa rtment of Veter ans Affa irs' (VA) deliberative proce ss.") , overruled on other grounds b y Ty r u e s , 23 Vet.App. 166. Acc ording ly , the Court holds that the Boa rd had the authority to issue separ ate decisions on the issues of (1) whether the Substantive Appea l was timely as to the appea l stemming from the 1990 claim that involved the initial rating and eff ective date of service connec tion for hy popigme ntation and (2) whether the veter an was entitled to an eff ective date ear lier than May 26, 1999, for the 30% rating stemming from the 2000 claim for an incre ased rating

. Moreove r, eac h separ ate decision denying the se matters is sepa rate ly appea lable to this Court as a final de cision. The Court's holding is consistent with Tyrues , supra

. This is so beca use, as stated above, the Court's October 2007 decision noting that the matters wer e inext rica bly intertwined for purposes of judicial economy did not mandate to the Boa rd on rema

nd that the matters be decide d toge ther at the
ag ency level, and the Board' s J une 2008 decision, which was a mix ed decision, clea rly denied the
appea l as to the issue of the timeliness of the Subst antive Appeal and provided adequate notice of appellate rig hts on that issue. See Tyrues , 23 Vet.App. at 168 (holding that Bo ar d d ecision was a

18final decision as to i t s d en i al of disability compensa tion for a lung condition under

direc t-servic e-c onnection provision, 38 U.S.C. § 1110, even though the Boa rd h ad rema

nded the
matter for additional development of evidenc e on whether the appellant was entitled to a presumptive service connec tion based on Persian Gulf Sy ndrom e) , 1 8 0 (holding that the Boa rd' s notice that was attache d to the 1998 Boa rd decision "inf

ormed the appellant that the appellate rig ht
per t ai n ed to the Boa

rd' s denial of service connec tion for a lung disorder on a direc t basis, as the
matter was not rema

nded" and "[t]he appellant was thus on notice that VA considere d the September 1998 decision of the Boa

rd to be a final decision on direc t service connec tion for a lung disability ") ; Tyrues , 732 F.3d at 1356 (af firming this Court and stating that "the denial port i o n o f a mix ed decision i s a fi n al decision available for Veter ans Court revie w wher e the Boa rd makes clea

r the finality of that denia l")

. I n addition, the Boa

rd had the authority to issue the separ ate decisions without providing the appellant with advance notice that i t wo u l d do so. We further hold that the Aug ust 2009 Boa rd decision is proper ly on appea l even though the issues of an initial ra t i n g in excess of 10% and an

ear lier eff

ective date for service connec tion, which the Court previously deeme d inext rica bly intertwined with the issues now on appea l, are not y et fi n al beca use finality of the 2008 Boa rd decision on those issues has be en aba ted and c urre ntly

rema ins so. D. Appea l from Aug ust 2009 Boar d Dec ision The a ppellant cha lleng es the May 26, 1999, eff

ective date assigned to his incre ased (30%) rating

. Wit h respe ct to the incre ased- rating claim stream, howeve r, the appellant provides no basis for a n ear lier ef

fec tive date. He arg ues only that the Boa rd failed to a ddress medic al re ports dated from 1982 throug h 1996 "show ing whole body involvement" of loss of pigme ntation. Appellant' s Br ief a t 27-28. Gene rally , for an orig inal clai m or a claim reope ned afte r final adjudication, the eff ective date

can be no ear lier than the date of the claim. See 38 U.S.C. § 5110(a)

. The eff ective date for an incre ased evalua tion is g ener ally the "da te of rec eipt of the claim [for incre ase ] o r t h e date entitlement arose , whicheve r is later." 38 C.F.R. § 3.400(o)( 1) (2014); see 38 U.S.C. § 5110(a)

. An eff ective date may be assig ned during the one-y ear period prior to the date of the claim fo r an incre ased rating if, during that period, it beca me "f actua lly asce rtainable that an incre ase in disability

19had occur red," pursuant to section 5 1 10(b)( 2) and § 3.400(o)( 2). See Dalton v. Nicholson , 21 Vet.App. 23, 3 4 -3 5 (2007). Be cause the appellant filed hi s incre ased- rating claim i n Fe bruar y 2 000, the ear liest eff

ective date he may rec eive as to this claim would be Fe bruar y 1999; but the appellant points to no evidenc e during t h e one-y ear look-bac k period that would support a date

ear lier than May 26, 1999. Acc ording ly , the appe llant fails to demonstrate that the B oard e rre d in its decision. See Hilkert v. W est , 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant has the burden of demonstrating err or), aff' d per curi a m , 232 F.3d 908 (F ed. Cir. 2000) (table)

. There fore , the C ourt will affirm the A ug ust 2009 Boar d decision with respe ct to its deter mination as to the incre ased- rating claim that was the subject of the se cond cla im stream. The Court makes clea

r that its af

fi rm an ce of the Aug ust 2009 Boa rd decision does not prec lude the appellant' s potential rig ht to a disability rating highe r than his initial 10% rating befor e May 26, 1999, and entitlement to an eff ective date ear lier than Marc h 26, 1990, based on his Marc h 1990 claim to r eopen, as well as the timeliness of the Substantive Appea l. The vete ran r etains the ability to continue to seek relief on these matters that are at issue in the first claim stream. Be cause the first claim stream culminated in the J une 2008 Boa rd decision that found the veter an' s Fe bruar y 2000 Substantive Appea l untimely as to those issues, and b ec ause that decision is curr ently the subject of a possible reque st for Bo ar d rec onsideration, those issues rema in untouched by the aff irmance of the 2009 B oard de cision. Fur ther, the Court will modify the Aug ust 2009 Boa rd decision to remove finding s that might
prec lude the veter an from obtaining relief on the matters at issue in the first claim stream. See 38 U.S.C. § 7252(a) (pr oviding the Court with " the power to affir m, modify , or re verse a dec ision of the Boa

rd, or to rema

nd the m at t er "); R. at 6 (Aug ust 2009 Boa rd conclude s that whether the Fe bruar y 2000 Substantive Appea l was t i m ely "ha s been decide d" and "is now final" ); R. at 15 (despite rec og nizi ng that there is only a one-y ear look-bac k period as to his Fe bruar y 2000 claim for

an incre ased rating , the Aug ust 2009 Boa rd revie ws medical evidenc e from as far back as the 1980s and broadly conclude s that "it was not fac tually asce rtainable prior to May 26, 1999, that the service member was entitled to an evalua tion of 30[%] for his service connec ted skin disability ")

. Be cause

we consider and aff

irm the 2009 Boa

rd decision on the second claim stream, that matter is conclude d and the only matters pending befor e the Boa rd perta in to the first claim stream. See Means v. Brown ,

209 Vet.App. 482, 483 (1996) (per curiam) (noting that "unde r the ' law of the case ' doctrine, an ear lier

deter mination by an appellate court is binding upon any admini s t rative tribunal subject to the decision of that c ourt" ). Ac co rd i ng ly , the C ourt will dismiss the appeal from the J une 2008 Boa rd decision, which found not timely a Fe bruar y 2000 Substantive Appea l challeng ing the awa rd of a 10% rating and the ef f e c tive date of Marc h 26, 1990, for service connec tion for hy popigme ntation, as prema ture beca use

a potential motion for Boa rd rec onsideration as to those issues was filed within 120 day s of the 2008 Boa rd decision and rema ins pending

. Although the appea l will be dismiss ed, the Court expects the Boa rd' s compliance with Ratliff , supra , and, if the Boa

rd construe s the submissi on as a motion for

rec onsideration and denies it, VA is require d to provide a new 120-day judicial appea l notice as part of the Ratliff notification.

IV. CONCLUSION Upon considera

tion of the fore g oing, the appea l from the J une 2008 Bo ar d decision is DI SMI SSED without prejudice

. I n addition, the Aug ust 2009 Boa rd decision denying an eff ective date ear lier than May 26, 1999, for the g rant of a 30% disability rating for postinflammatory hy popigme ntation of the fac e, back, chest, and abdomen based on a Fe bruar y 2000 incre ased- rating claim is MODI FI ED to remove Boa rd' s finding s that might prec lude the veter an from obtaining r e li e f

on the matters at issue in J une 2008 Boa rd decision–e.g ., Boa

rd comments on the finality of the J une 2008 Boa rd decision and Boa

rd finding s rela ting to en titlement to an eff ective date ear lier than May 26, 1999, that wer e made on a basis other than the Fe bruar y 2000 incre ased- rating claim–and,

as modi fi ed , is AFF I RMED. As stated above, the Court's aff irmance of the Aug ust 2009 Boa rd decision does not a ffe ct the appellant' s potential rig ht to a disability rating highe r than 10% for the period prior to May 26, 1999, and an ear lier eff ective date of service connec tion, based on his Marc h 1990 claim to reope n, which are issues that rema in pending with VA until the Boa rd Chairman takes action on the appellant' s Fe bruar y 2009 potential motion for Boa rd rec onsideration of the J une 2008 Boa rd dec ision.

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