Citation Nr: 21003628 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 09-07 786 DATE: January 22, 2021 ORDER The claim for increased rating for chondromalacia of the right knee is dismissed. The claim for increased rating for chondromalacia of the left knee is dismissed. The claim for increased rating for hypothyroidism is dismissed. The claim for service connection for right ankle disability, including as secondary to bilateral knee disabilities, is dismissed. The claim for service connection for left ankle disability, including as secondary to either bilateral knee disabilities or right ankle disability, is dismissed. The claim for service connection for sleep apnea, including as secondary to hypothyroidism or gastroesophageal reflux disease (GERD), is dismissed. The claim for service connection for heart disability, including as secondary to hypothyroidism or GERD, is dismissed. FINDINGS OF FACT 1. In September 2020 the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of increased rating for chondromalacia of the right knee, after the issuance of a Supplemental Statement of Case (SSOC) in August 2020. 2. In September 2020 the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of increased rating for chondromalacia of the left knee, after the issuance of a SSOC in August 2020. 3. In September 2020 the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of increased rating for hypothyroidism, after the issuance of a SSOC in August 2020. 4. In September 2020 the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of service connection for right ankle disability, including as secondary to bilateral knee disabilities, after the issuance of a SSOC in August 2020. 5. In September 2020 the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of service connection for left ankle disability, including as secondary to either bilateral knee disabilities or right ankle disability, after the issuance of a SSOC in August 2020. 6. In September 2020 the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of service connection for sleep apnea, including as secondary to hypothyroidism or gastroesophageal reflux disease (GERD), after the issuance of a SSOC in August 2020. 7. In September 2020 the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of service connection for heart disability, including as secondary to hypothyroidism or GERD, after the issuance of a SSOC in August 2020. CONCLUSIONS OF LAW 1. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issue of entitlement to increased rating for chondromalacia of the right knee have been met. Pub. L. 115-55; 131 Stat 1105; 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 20.205(c). 2. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issue of entitlement to increased rating for chondromalacia of the left knee have been met. Pub. L. 115-55; 131 Stat 1105; 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 20.205(c). 3. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issue of entitlement to increased rating for hypothyroidism have been met. Pub. L. 115-55; 131 Stat 1105; 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 20.205(c). 4. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issue of entitlement to service connection for right ankle disability, including as secondary to bilateral knee disabilities, have been met. Pub. L. 115-55; 131 Stat 1105; 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 20.205(c). 5. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issue of entitlement to service connection for left ankle disability, including as secondary to bilateral knee disabilities or right ankle disability, have been met. Pub. L. 115-55; 131 Stat 1105; 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 20.205(c). 6. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issue of entitlement to service connection for sleep apnea, including as secondary to hypothyroidism or gastroesophageal reflux disease (GERD), have been met. Pub. L. 115-55; 131 Stat 1105; 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 20.205(c). 7. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issue of entitlement to service connection for heart disability, including as secondary to hypothyroidism or GERD, have been met. Pub. L. 115-55; 131 Stat 1105; 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 20.205(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to August 1994. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran appealed the claims the subject of this appeal and in May 2019 the Board remanded these claims for additional development. Following development, the VA Regional Office (RO) in August 2020 issued a supplemental statement of the case (SSOC) addressing each of the appealed issues. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5). An appeal may be withdrawn as to any or all issues in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.205. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. 115-55 (to be codified at 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). The law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review and allows the Veterans' election for review of their legacy appeal in the AMA system. 38 C.F.R. § 19.2. Twice in September 2020, the Veteran submitted a signed, valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and elected higher-level review of all of the appealed issues: increased rating for chondromalacia of the right knee; increased rating for chondromalacia of the left knee; increased rating for hypothyroidism; service connection for right ankle disability, including as secondary to bilateral knee disabilities; service connection for left ankle disability, including as secondary to either bilateral knee disabilities or right ankle disability; service connection for sleep apnea, including as secondary to hypothyroidism or gastroesophageal reflux disease (GERD); and service connection for heart disability, including as secondary to hypothyroidism or GERD. He thereby withdrew all these issues from the legacy appeal system. See 38 C.F.R. § 19.2 (d)(2). Accordingly, to honor the election for a Higher-Level Review in the modernized review system, the legacy appeals of the appealed issues are dismissed. The Veteran retains his rights to pursue the appealed issues in the modernized appeal system pursuant to 38 C.F.R. §§ 19.2 (d)(2), 20.205(c). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.