Citation Nr: 20078174 Decision Date: 12/10/20 Archive Date: 12/10/20 DOCKET NO. 17-37 260 DATE: December 10, 2020 ORDER The Legacy appeal of the issue of entitlement to service connection for a bilateral eye disability is dismissed. REMANDED The issue of service connection for hepatitis C is remanded. FINDING OF FACT On June 9, 2018, the Veteran requested withdrawal of his appeal of entitlement to service connection for a bilateral eye disability from the Legacy appeals system and he opted into VA’s Rapid Appeals Modernization Program (RAMP). CONCLUSION OF LAW The criteria for withdrawal of the Legacy appeal by the Veteran have been met with respect to the issue of entitlement to service connection for a bilateral eye disability. 38 U.S.C. § 7105; 38 C.F.R. § 20.205 (for AMA) § 19.55 (legacy). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to September 1973. These matters originally came before the Board of Veterans’ Appeals (Board) on appeal from August 2015 and June 2017 rating decisions issued by the RO. In a March 2019 decision, the Board denied the Veteran’s claims of service connection for a bilateral eye disability and hepatitis C. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020 the Court granted the parties’ June 2020 Joint Motion for Remand (Joint Motion or JMR) and vacated the Board’s March 2019 decision. In pertinent part, the parties agreed that in the March 2019 decision the Board provided an inadequate statement of reasons and bases to support its determination that the Veteran’s appeal was no longer eligible for RAMP. In the June 2020 Joint Motion, the parties also agreed that the Board must consider the scope of the Veteran’s appeal, noting that the Veteran stated in the June 2018 RAMP election form that he “would like all my appeals done by RAMP.” In his September 2018 appeal of the September 2018 RAMP rating decision (which addressed the issue of service connection for a bilateral eye disability only), the Veteran indicated that he sought review of the following issues: diabetes chronic obstructive pulmonary disease (COPD), high blood pressure, knees, foot, hepatitis C, back and leg. However, the Veteran’s claims for service connection for a bilateral eye disability, right knee strain, left knee strain, diabetes mellitus, high blood pressure and high cholesterol were denied in an August 2015 rating decision and the Veteran’s Notice of Disagreement (NOD) of all these claims was received in September 2015. The Agency of Original Jurisdiction (AOJ) issued the Statement of the Case (SOC) addressing all the issues in June 2017; however, on his Substantive Appeal received in June 2017, the Veteran explicitly stated that he had read the SOC and was only appealing the issue of service connection for a bilateral eye disability. 38 C.F.R. §§ 20.200, 20.201, 20.202. His claims for service connection for hepatitis C and a back disability were informally received in September 2015 (formally received in May 2017) and denied in a June 2017 rating decision. In the NOD received in July 2017, the Veteran indicated that he was only appealing the denial of service connection for hepatitis C. The AOJ issued the SOC addressing hepatitis C in July 2017 and the Veteran perfected his appeal in July 2017. 38 C.F.R. §§ 20.200, 20.201, 20.202. The Veteran has never filed claims of service connection for COPD or a foot disability. For these reasons, claims for service connection for right knee strain, left knee strain, diabetes mellitus, high blood pressure, high cholesterol, a back disability, COPD and a foot disability are not before the Board on appeal at this time. 1. Entitlement to service connection for a bilateral eye disability 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205 (for AMA) § 19.55 (legacy). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205 (for AMA) § 19.55 (legacy). The claim of service connection for a bilateral eye disability was denied in an August 2015 rating decision and the Veteran’s NOD was received in September 2015. The AOJ issued the SOC in June 2017 and the Veteran perfected his appeal in June 2017. His claim for service connection for a bilateral eye disability was certified to the Board in July 2017. On June 9, 2018, the Veteran elected to withdraw his appeal of this issue from the Legacy appeals system to participate in RAMP. He selected the Higher-Level Review option. In September 2018, the AOJ notified the Veteran that his appeal for service connection for a bilateral eye disability had been withdrawn and processing under the Legacy appeals system had been discontinued. He was advised that his appeal of this issue could not be reinstated under the current appeals process (i.e., the Legacy appeals system). Thereafter, in September 2018, the AOJ issued a RAMP rating decision which denied service connection for a bilateral eye disability. On September 25, 2018, the Veteran’s appeal to the Board for direct review of the claim was received. The Veteran’s election to participate in RAMP, Higher-Level Review serves as a withdrawal of the appeal of this issue under the Legacy appeals system. He was clearly notified of such by the AOJ and a RAMP rating decision was issued in September 2018, but due to administrative error, his Legacy appeal was still returned to the Board. However, as the Veteran has withdrawn this Legacy appeal, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of entitlement to service connection for a bilateral eye disability and it is dismissed under the Legacy appeals system. This Board determination does not affect the Veteran’s appeal of the September 2018 RAMP rating decision. The Veteran’s appeal of the claim of service connection for a bilateral eye disability under the Appeals Modernization Act (AMA) will be the subject of a later Board decision. REASONS FOR REMAND 1. Service connection for hepatitis C is remanded. As an initial matter, to reiterate, in the March 2019 decision, the Board, in pertinent part, denied the Veteran’s claims for service connection for hepatitis C. The Veteran appealed the Board decision to the Court. In July 2020 the Court granted the parties Joint Motion and vacated the Board’s March 2019 decision. In pertinent part, the parties agreed that in the March 2019 decision the Board provided an inadequate statement of reasons and bases to support its determination that the Veteran’s appeal was no longer eligible for the RAMP program. Here, the claim for service connection for hepatitis C was denied in a June 2017 rating decision and the Veteran’s NOD was received in July 2017. The AOJ issued a SOC in July 2017 and the Veteran perfected his appeal in July 2017. His claim for service connection for hepatitis C was certified to the Board in August 2017. Per internal Board procedures, the date the appeal is charged from “Advance” or “Advance Pending Intake” to “Pending Review” is the date the appeal is activated at the Board. In this case, the Veteran’s appeal was activated at the Board on December 28, 2017. His RAMP opt-in election form was received on June 9, 2018. Given his claim for service connection for hepatitis C had already been activated, the claim for service connection for hepatitis C was no longer eligible for RAMP. Accordingly, the Board undertakes appellate review of this issue under the Legacy appeals system. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that he has hepatitis C that onset due to event or incident incurred during service. In the June 2020 Joint Motion, the parties agreed that the Board must obtain a medical opinion addressing whether there is a nexus between the Veteran’s period of service and his claimed hepatitis, noting that the Veteran had been advised that “high risk sexual activity” was a recognized risk factor for hepatitis infections and an April 2017 VA treatment record contained a notation that the Veteran had contracted chlamydia in 1973. Accordingly, VA examination must determine if there is a nexus relationship between the Veteran’s claimed hepatitis C and his period of service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed hepatitis C. The VBMS file must be reviewed by the examiner. All indicated tests and studies should be performed and the clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran’s documented medical history and assertions – he asserts that he hepatitis C that onset due to injury or disease, event or incident incurred in service. After reviewing the entire record, the examiner should provide an opinion with supporting explanations as to the following: Does the Veteran have hepatitis C that had onset due to disease, injury, event or incident incurred during his period of service, to include any high-risk sexual activity exposed to therein? As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his attention is drawn to the following: *March 1973 service treatment report documents the Veteran’s complaint of burning in urine. On examination the impression was nonspecific urethritis (NSU). *An April 2017 VA treatment record reflects that the Veteran was hepatitis C positive but had received no treatment for the disease. His reported past sexual history included indication that he had contracted chlamydia in 1973 and gonorrhea in 1992. *A June 2017 VA notification letter advised the Veteran of the recognized risk factors for hepatitis C. *June 2017 report of general information reflects that the Veteran did not know how he contracted hepatitis C. He reported that he was never tested for hepatitis C until 8 or 9 years earlier. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.