Citation Nr: 21062976
Decision Date: 10/12/21	Archive Date: 10/12/21

DOCKET NO. 18-28 432A
DATE: October 12, 2021

ORDER

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or the housebound criteria being met is dismissed.

Entitlement to SMC based on loss of use of a creative organ is dismissed.

FINDING OF FACT

Following VA's issuance of a July 2021 supplemental statement of the case (SSOC) to the appellant in her Legacy appeal as to the claims of entitlement to SMC based on the need for regular aid and attendance or the housebound criteria being met and entitlement to SMC based on loss of use of a creative organ, the appellant opted into the modernized, Appeals Modernization Act (AMA), review system by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) on August 16, 2021.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the Legacy appeal of entitlement to SMC based on the need for regular aid and attendance or the housebound criteria being met due to the lack of Board jurisdiction have been met.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.2400, 19.55.

2. The criteria for dismissal of the Legacy appeal of entitlement to SMC based on loss of use of a creative organ due to the lack of Board jurisdiction have been met.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.2400, 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from September 1951 to August 1955.  He died in July 2018.  The Appellant is his surviving spouse.

Following an April 2021 Board remand through the Legacy appeals system, the Agency of Original Jurisdiction (AOJ) issued a July 2021 SSOC to the appellant.  The appellant opted the claims into the modernized review system, also known as the AMA, by submitting an August 2021 VA Form 10182, Decision Review Request: Board Appeal, identifying the July 2021 SSOC and electing the Evidence Submission docket.  In August 2021, the Board notified the appellant that her AMA appeal was placed on the Board's Evidence Submission docket. 

The appellant's opt-into the modernized review system has the effect of withdrawing her Legacy appeal.  38 C.F.R. § 3.2400(c)(2).  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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 19.55.

Here, in light of the specific withdrawal of the Legacy appeal in favor of the AMA system, there remain no allegations of errors of fact or law for appellate consideration in connection with the Legacy appeal.  Accordingly, the Board does not have jurisdiction to review the issues of entitlement to SMC based on the need for regular aid and attendance or the housebound criteria being met and entitlement to SMC based on loss of use of a creative organ in the Legacy system and they must be dismissed; however, the appeal under the AMA system remains active and will be addressed in a separate decision.  She has 90 days from the date of the Board's receipt of her Board Appeal (VA Form 10182) to submit new evidence, and that appeal was received on August 16, 2021.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Durham, 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.