Citation Nr: 21004875
Decision Date: 01/28/21	Archive Date: 01/28/21

DOCKET NO. 09-31 380
DATE: January 28, 2021

ORDER

The Veteran's legacy appeal of entitlement to a disability rating in excess of 20 percent for a cervical strain; entitlement to a disability rating in excess of 20 percent for right arm pain from April 24, 2008, to September 20, 2016; and entitlement to a compensable rating for right arm pain for the period from September 21, 2016; is dismissed.

FINDING OF FACT

On May 14, 2019, the Veteran opted into a review under the Appeals Modernization Act (AMA) by submitting VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) with regard to his claim for an increased rating for a cervical strain, within 60 days of the issuance of the May 4, 2019, Supplemental Statement of the Case (SSOC).

CONCLUSION OF LAW

The Board lacks jurisdiction to consider the Veteran’s legacy appeal. 38 U.S.C. § 7105; 38 C.F.R. § 19.2.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1972 to September 1988.

This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which is the agency of original jurisdiction (AOJ).

In August 2019, the Board issued a decision granting entitlement to a separate 20 percent rating for right arm pain from April 24, 2008, to September 20, 2016; and denied entitlement to a disability rating in excess of 20 percent for a cervical strain; a disability rating in excess of 20 percent for right arm pain from April 24, 2008, to September 20, 2016; and a compensable rating for right arm pain for the period from September 21, 2016. 

The Veteran appealed the Board’s decision to the United States Court of Appeals for Veteran’s Claims (CAVC).  In August 2020, CAVC granted a Joint Motion for Partial Remand (JMPR) that vacated the denied portion of the Board’s decision and remanded the claim for development consistent with the JMPR.

The Veteran’s legacy appeal is dismissed. 

In this case, the Veteran submitted a VA Form 10182, Notice of Disagreement after the AOJ issued a SSOC on May 4, 2019, which was received by VA on May 14, 2019.  As this form was received within 60 days of the SSOC, he opted into the new modernized appeals review system for the issue of an increased evaluation for a cervical strain (and all claims part and parcel, thereof).  38 C.F.R. § 19.2 (d).

The Veteran’s AMA opt-in was valid, timely, and must be honored. 38 C.F.R. §§ 3.2400, 19.2, 19.52.  The Board does not have jurisdiction to adjudicate the Veteran’s appeal under the legacy appeals system as doing so would deprive him of due process under law.  Accordingly, the Board does not have jurisdiction to adjudicate the Veteran’s legacy appeal and it is dismissed.  38 U.S.C. § 7105; 38 C.F.R. § 19.2.

The Veteran’s appeal has been docketed in the Board’s modernized appeals system in accordance with the appellant’s May 2019 election on the timely filed VA Form 10182.  As such, it will be adjudicated in a separate AMA decision as appropriate. 

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.M. Johnson, 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.