Citation Nr: 21066347 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 19-21 199 DATE: October 29, 2021 ORDER Entitlement to service connection for sleep apnea is dismissed. REMANDED Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) from December 11, 2016 is remanded. FINDING OF FACT The appellant's claim for service connection for obstructive sleep apnea was granted in a November 2020 rating decision. CONCLUSION OF LAW The criteria for dismissal of the appeal of entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Navy from October 1986 to October 2006. As an initial matter, the Board notes that the issues of entitlement to service connection for migraine headaches, chronic fatigue syndrome, and fibromyalgia were originally included, along with claim for an increased rating for PTSD, as part of this appeal. A rating decision was issued under the legacy adjudication system in July 2017 and the appellant submitted a timely notice of disagreement (NOD) in June 2018. In May 2019, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC) addressing the issues of entitlement to service connection for migraine headaches, chronic fatigue syndrome, and fibromyalgia. The appellant opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a July 2019 VA Form 10182, Decision Review Request: Board Appeal, electing to have his appeal considered by the Board on the Direct Review Docket. These claims were already previously addressed by the Board and remanded for readjudication by the AOJ in an April 2020 decision. Readjudication by the AOJ was completed in a November 2020 rating decision. The appellant has, at this point, not initiated an appeal of any of the issues decided in the November 2020 AOJ decision. As these claims for service connection were opted into the modernized review system by way of the July 2019 VA Form 10182, the Board no longer has jurisdiction to hear these issues under the legacy adjudication framework. A new VA Form 10182 has been submitted by the appellant in relation to the November 2020 rating decision. Claims under the modernized review system are not automatically returned to the Board after readjudication by the AOJ. As such, should the appellant disagree with the November 2020 rating decision, or any subsequent rating decision, he is advised that he must file the appropriate form with VA to initiate an appeal of any of those decisions. 1. Entitlement to service connection for sleep apnea is dismissed. 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. In this case, the appellant was denied entitlement to service connection for sleep apnea in an April 2018 rating decision. This decision was appealed in an NOD received by VA in March 2019. A Statement of the Case (SOC) was issued by VA in May 2019. VA received the appellant's Substantive Appeal (Form 9) in July 2019, perfecting the appeal and requesting a hearing addressing this claim. In a November 2020 rating decision, the RO granted the appellant's claim for service connection for sleep apnea. The Board notes that a grant of entitlement to service connection is a full grant of the benefit sought on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). As the claim has been granted, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and the appeal of the denial of service connection for sleep apnea is dismissed. REASONS FOR REMAND 1. Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) from December 11, 2016 is remanded. In a July 2017 rating decision, the appellant's claim for a rating in excess of 50 percent for his service-connected PTSD was denied by the RO. The appellant filed a NOD related to his claim in June 2018. Following the appellant's filing of an NOD related to this claim, the RO has failed to issue a SOC addressing the appellant's claim to a rating in excess of 50 percent for his service-connected PTSD. The issue was not addressed in SOCs issued in May 2019 and May 2020. Generally, the filing of a NOD confers jurisdiction on the Board and the next step is for the Agency of Original Jurisdiction (AOJ) to issue an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). In this case, as the appealed issue has not yet addressed in an SOC, the Board finds that remand is necessary so that the AOJ may issue an SOC addressing the appellant's claim for an increased rating for his service-connected PTSD. 38 C.F.R. § 20.904. While this appeal has been pending, the AOJ issued a January 2019 rating decision which granted an increased 70 percent rating for service-connected PTSD from December 11, 2016, the day VA received the appellant's intent to file in relation to this claim for an increased rating. This grant of a 70 percent rating for the entire period on appeal though does not constitute a full grant of the benefits sought on appeal, as the appellant was not granted the maximum allowable benefit under the law. As such, the Board finds that the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is no abrogated). Therefore, because the claim was not fully resolved with the January 2019 rating decision, nor has the appellant indicated satisfaction with the rating, and because an SOC was not issued in relation to this claimed disability, the Board concludes that remand of this issue is necessary so that the AOJ may issue an SOC in relation to the claim for a rating in excess of 70 percent for service-connected PTSD. (Continued on the next page) The matters are REMANDED for the following action: 1. Send the appellant and his representative a statement of the case that addresses the issue of entitlement to a rating greater than 70 percent for PTSD from December 11, 2016. If the appellant perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.