Citation Nr: 20060656 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 19-07 207 DATE: September 15, 2020 ORDER Entitlement to accrued benefits for a traumatic brain injury (TBI) is dismissed. Entitlement to accrued benefits for coronary bypass surgery is dismissed. FINDINGS OF FACT 1. The appellant’s claim for accrued benefits for a TBI and coronary bypass surgery were denied in a September 2019 rating decision. 2. The appellant filed a VA Form 10182 on December 3, 2019. CONCLUSIONS OF LAW 1. The Board does not have jurisdiction to consider the appeal for accrued benefits for a TBI in the legacy system. 38 U.S.C. § 7104; 38 C.F.R. § 20.202(d). 2. The Board does not have jurisdiction to consider the appeal for accrued benefits for coronary bypass surgery in the legacy system. 38 U.S.C. § 7104; 38 C.F.R. § 20.202(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1958 to July 1975. Unfortunately, the Veteran died on April [REDACTED], 2019, while his claims for service connection for a TBI and coronary bypass surgery were still pending. Since then, the appellant, the Veteran’s surviving spouse, has been recognized as the substitute claimant. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. As such, she has been substituted for the appellant for purposes of processing the claim to completion. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to accrued benefits. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new AMA framework for appellants to appeal VA decisions with which they are not satisfied and includes various options for appealing an initial rating decision to the Board. The prior system for deciding such appeals is now referred to as the “legacy framework.” The AMA applies to all claims for which VA issues notice of an initial decision on or after the effective date of the AMA, which is February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. The AMA also applies where a claimant has elected review of a legacy claim under the AMA as provided in 38 C.F.R. § 3.2400(c). Under the law, an appellant can elect AMA review of a legacy claim only by opting in under Rapid Appeals Modernization Act or by electing to proceed under the AMA after the issuance of a Statement of the Case or Supplemental Statement of the Case. 38 C.F.R. § 3.2400(c). The controlling regulations clearly provide that an appeal to the Board of an AMA decision must be filed on the appropriate VA form. VA will not accept a Notice of Disagreement as an expression of a desire to contest the result of an adjudicative determination that is submitted in any other format, including on a different VA form. See 38 C.F.R. § 20.202(d) (effective February 19, 2019). VA has designated VA Form 10182 as the appropriate form for filing a Notice of Disagreement with an AMA decision. In contrast, the statute and regulations applicable to legacy appeals provide that appellate review will be initiated by a Notice of Disagreement and completed by a substantive appeal after a Statement of the Case is furnished. 38 U.S.C. § 7105(a); see also 38 C.F.R. § 20.200 (redesignated § 19.20, effective February 19, 2019). VA will only accept an expression of dissatisfaction or disagreement with an adjudicative determination by an agency of original jurisdiction as a Notice of Disagreement if it is submitted on a standardized form provided by VA for the purpose of appealing the decision, in cases where such a form is provided. See 38 C.F.R. § 20.201 (redesignated § 19.21 effective February 19, 2019). In the legacy system, VA Form 21-0958 is the appropriate form to use for filing a Notice of Disagreement. In the present case, an AMA decision issued on September 5, 2019, denied the appellant’s claim for entitlement to accrued benefits for a TBI and coronary bypass surgery. On December 3, 2019, the appellant’s representative appealed the September 2019 AMA rating decision and requested review under the “hearing docket” in a VA Form 10182. Thereafter, her representative submitted an April 2020 letter withdrawing the request for a hearing before the Board and asking for the appeal to be decided based on the evidence of record. The Board also notes that the appellant’s representative also asked for the case to be adjudicated in the legacy system instead of the AMA system if there was a question as to which system the claim should be adjudicated in. Here, although the Board has thus far treated the instant matter as an appeal under the legacy appeals system, the Board lacks jurisdiction to address the appellant’s case in the legacy system. Because the decision on appeal was denied in a September 5, 2019, rating decision, it was issued under the AMA system. As set forth above, a proper AMA Notice of Disagreement was submitted using VA Form 10182. The appellant’s case is thus currently pending in the AMA appeals system, and the Board lacks jurisdiction to consider the merits of the appeal in the legacy system. Indeed, although the appellant’s representative asked for the case to instead be adjudicated in the legacy system, the applicable regulations requiring that an appeal to the Board of an AMA decision be filed on the proper form do not contain an exception allowing the appellant to file an appeal in the legacy system instead. See 38 C.F.R. § 20.202(d). Moreover, the appellant has not filed a Notice of Disagreement via VA Form 21-0958, the appropriate form under the legacy system. Accordingly, the appellant’s claim in the legacy system must be dismissed. The Board notes that this dismissal has no bearing on the merits of the pending AMA appeal for accrued benefits for a TBI or coronary bypass surgery. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.