Citation Nr: 20021205 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-58 650 DATE: March 24, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed. FINDING OF FACT Subsequent to an April 2019 Board of Veterans’ Appeals (Board) remand, the Veteran opted into the Appeals Modernization Act (AMA) review system by submitting a VA Form 20-0996, Decision Review Request, Higher Level Review, which was received on January 22, 2020, with respect to this claim, thus, his claim cannot be adjudicated in the Legacy appeals system. CONCLUSION OF LAW The Board lacks jurisdiction to adjudicate the claim of entitlement to a TDIU. U.S.C. § 7105; 38 C.F.R. §§ 3.2400, 19.52, 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2001 to October 2001 and from January 2003 to September 2003. This matter comes before the Board from a November 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). As to the issue of representation, January 28, 2020 VA correspondence to the Veteran and his then representative, Virginia A. Girard-Brady, an attorney, informed them that they had 90 days from the date of the letter or until the Board issued a decision in his appeal to request a change in representation. In February 2020, the Veteran’s attorney withdrew her representation, and copied the Veteran with notice of the withdrawal. To date, the Veteran has not appointed another representative. As such, the Board will recognize the Veteran as pro se. Moreover, as the claim herein is dismissed as the Veteran has opted into the AMA system, and as his claim remains pending under the AMA framework, the Veteran will have the opportunity to appoint another representative if he so desires. 1. Entitlement to TDIU The case was previously before the Board in April 2019. In April 2019, the Board, in pertinent part, remanded the issue of entitlement to a TDIU as well as the issues of entitlement to service connection for a lumbar spine disability and entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for additional development. Prior to the issuance of a decision on this matter, and subsequent to the April 2019 Board remand and issuance of a December 2019 supplemental statement of the case, the Veteran’s then representative elected to participate in the AMA review system and withdrew the Legacy appeals for entitlement to a TDIU (as well as entitlement to service connection for a lumbar spine disability and entitlement to a rating in excess of 50 percent for PTSD). Specifically, the Veteran’s then representative elected to opt-in to the modernized review system, after issuance of a December 2019 supplemental statement of the case, under the Appeals Modernization Act, by filing a VA Form 20-0996, Decision Review Request, Higher Level Review, which was received on January 22, 2020, with respect to entitlement to a TDIU (as well as entitlement to service connection for a lumbar spine disability and entitlement to a rating in excess of 50 percent for PTSD). In the January 2020 VA Form 20-0996, Decision Review Request, Higher Level Review the Veteran’s then representative affirmatively withdrew the Legacy appeal and elected to opt-in to the modernized review system under the Appeals Modernization Act for entitlement to a TDIU. In this regard, although the issue of entitlement to TDIU is listed within the same block on the VA Form 20-0996 as with the issue of entitlement to service connection for a lumbar spine disability, the issue of entitlement to a TDIU is unambiguously and explicitly listed, and further, argument was also submitted in conjunction with this form which addressed entitlement to a TDIU. Thus, as the Veteran’s then representative opted into the AMA after the Board’s April 2019 remand, and issuance of a December 2019 supplemental statement of the case, the appeal as to entitlement to a TDIU must be withdrawn from the Legacy appeal process. 38 C.F.R. § 3.2400 (d). Although the claim for entitlement to a TDIU is currently awaiting the Agency of Original Jurisdiction to issue its Higher-Level Review decision, the Board does not have jurisdiction over this issue, and it is dismissed. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.