Citation Nr: 21065794
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 17-49 848
DATE:  October 27, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

There is no case or controversy within the jurisdiction of the Board of Veterans' Appeals (Board) regarding the Veteran's claim for an increased rating for migraines.

CONCLUSION OF LAW

The criteria for dismissal due to lack of jurisdiction, for failure to submit a notice of disagreement (NOD), is met. 38 U.S.C. § 7105(b)(2), (d)(5) (2018); 38 C.F.R. §§ 19.52, 20.204 (2020). 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active naval service from May 2000 to August 2008. 

Procedurally, the Veteran initially filed a claim for entitlement to migraines secondary to service-connected generalized anxiety disorder in January 2014. In November 2014, the Veteran was issued a rating decision, under the legacy system, that granted a noncompensable rating for migraine headaches, effective January 13, 2014. 

In May 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and elected higher-level review (HLR). In August 2018, prior to the issuance of a RAMP HLR decision, the Veteran submitted a statement withdrawing the appeal for migraine headaches. 

The August 2018 withdrawal of the appeal included the Veteran's name, file number, and an express request to withdraw the specific claim on appeal, thus fulfilling all regulatory requirements for a proper withdrawal. 38 C.F.R. § 20.205 (2020). Based upon the valid written withdrawal submitted by the Veteran, there was no longer a case in controversy over which the Board had jurisdiction, on the effective date of the withdrawal, August 3, 2018. See 38 C.F.R. § 20.205(b)(3) (2020). 

On August 17, 2018, the Veteran submitted a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, for the claim of entitlement to an increased rating for migraines. In September 2018, the regional office (RO) issued a rating decision under the legacy system. The Veteran failed to submit a notice of disagreement (NOD) with the August 2018 rating decision. In September 2018, the Veteran submitted a request for an audit of her award but failed to indicate which claim she was referring to. 

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 (2018). It is well established that in order for the Board to have jurisdiction to review the denial of a claim, after a rating decision has been promulgated, a written notice of disagreement (NOD) must be received within one year of notification of the Regional Office's denial of the claim. 38 C.F.R. §§ 19.20, 19.52(a) (2020). The NOD must be filed on the form prescribed by the Secretary of the VA, which is VA Form 21-0958. 38 C.F.R § 19.21(a)(1) (2020). Thereafter, the VA will issue a statement of the case and if the Veteran is still dissatisfied a timely substantive appeal must be submitted before the Board has jurisdiction of the matter. See 38 C.F.R. §§ 19.20, 19.52(b) (2020). 

Accordingly, as the record reflects that the Veteran has not filed an NOD under the Legacy Appeal system to initiate the appeal, the Board does not have jurisdiction to review the appeal and it must be dismissed. See 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 19.20, 19.52, 20.104 (2020). 

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Byrd, 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.