Citation Nr: 1648497	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  09-16 053	)	DATE
	)
	)

On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss.

2.  Entitlement to an initial rating in excess of 10 percent for tinnitus.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel 



INTRODUCTION

The Veteran served on active duty from October 1952 to September 1954.

These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2007 and June 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2015).  38 U.S.C.A. § 7107 (a)(2) (West 2014).


FINDINGS OF FACT

1.  The appeal for entitlement to an initial rating in excess of 10 percent for bilateral hearing loss was previously adjudicated by a September 2016 Board decision.

2.  The appeal for entitlement to an initial rating in excess of 10 percent for tinnitus was previously adjudicated by a September 2016 Board decision.


CONCLUSIONS OF LAW

1.  The appeal for entitlement to an initial rating in excess of 10 percent for bilateral hearing loss, having been previously adjudicated by the Board, is dismissed.  38 U.S.C.A. §§ 7103, 7104(b), 7105 (West 2014); 38 C.F.R. §§ 20.1000, 20.1100 (2015).

2.  The appeal for entitlement to an initial rating in excess of 10 percent for tinnitus, having been previously adjudicated by the Board, is dismissed.  38 U.S.C.A. §§ 7103, 7104(b), 7105 (West 2014); 38 C.F.R. §§ 20.1000, 20.1100 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss and entitlement to an initial rating in excess of 10 percent for tinnitus were initially before the Board in January 2016, when the Board denied the Veteran's tinnitus claim, and remanded the Veteran's hearing loss claim for additional evidentiary development.  

The Veteran appealed the Board's January 2016 decision to the United States Court of Appeals for Veterans Claims (Court), which in July 2016, granted a Joint Motion for Partial Remand (JMPR) of the parties (VA Secretary and the Veteran), and vacated the Board's decision to the extent that it denied entitlement to an initial rating in excess of 10 percent for tinnitus, and remanded the case pursuant to 38 U.S.C. § 7252 (a) for re-adjudication consistent with the Motion.

Thereafter, entitlement to an initial rating in excess of 10 percent for bilateral hearing loss and entitlement to an initial rating in excess of 10 percent for tinnitus were again adjudicated and denied by the Board in its September 2016 decision.  Absent an appeal, to include a motion for reconsideration, the September 2016 Board decision is final.  Because the Board's September 2016 decision is determinative, as a matter of law, that the evidence did not show entitlement to an initial rating in excess of 10 percent for bilateral hearing loss or entitlement to an initial rating in excess of 10 percent for tinnitus, the Veteran is collaterally estopped from relitigating the same issues.  38 U.S.C.A. § 7104 (b); 38 C.F.R. §§ 20.1000, 20.1100.  See Hazan v. Gober, 10 Vet. App. 511, 520-21 (1997), (holding 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). 

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.A. § 7105 (West 2014).  In the present case, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal for higher initial ratings for bilateral hearing loss and tinnitus, and the appeal is dismissed.

Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002).


ORDER

The appeal as to the issue of entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is dismissed.

The appeal as to the issue of entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed.



		
U. R. POWELL
	Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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