Citation Nr: A21016448 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 201208-123356 DATE: October 6, 2021 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance and housebound status under the new modernized system, also known as the Appeals Modernization Act (AMA) is dismissed for lack of jurisdiction. FINDING OF FACT An appeal of the issue of SMC based on aid and attendance and housebound status is pending in the legacy system and has not been withdrawn or opted into the AMA; therefore, the August 2020 AMA rating decision denying SMC based on aid and attendance and housebound status was not an appealable decision under the AMA. CONCLUSION OF LAW The Board of Veterans' Appeals (Board) does not have AMA jurisdiction over the issue of entitlement to SMC based on aid and attendance and housebound status. 38 U.S.C. § 7104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2000 to February 2003. By way of background, an August 2017 rating decision denied entitlement to SMC based on aid and attendance and housebound status. The Veteran timely appealed to the Board via a NOD submitted the same month and perfected the appeal with submission of a March 2018 VA Form 9, Appeal to the Board of Veterans' Appeals. In August 2020, while the issue remained on appeal in legacy, the Veteran submitted a new VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. In an August 2020 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to SMC based on aid and attendance and housebound status. In December 2020, the Veteran submitted a VA Form 10182 (NOD) as to the August 2020 rating decision, resulting in this AMA appeal to the Board. The AMA applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. The AMA also applies where a claimant has elected review of a legacy appeal under the AMA as provided in 38 C.F.R.§ 3.2400(c). Id. This section only allows for the appellant to elect AMA review of a legacy appeal by opting-in under the Rapid Appeals Modernization Program (RAMP), or by electing to proceed under the AMA after the issuance of a SOC or SSOC. Id. A rating decision adjudicating an issue that is the subject of a pending legacy appeal is not an initial decision to which the AMA applies and therefore cannot be appealed via a VA Form 10182. See Hamilton v. Brown, 4 Vet. App. 528, 541 (1993) (holding that once a claim is in "appellate status" by virtue of a previously filed Notice of Disagreement (NOD), the claimant may not file an additional NOD which could confer jurisdiction on the United States Court of Appeals for Veterans Claims (CAVC) as to that claim); Hudson v. Principi, 3 Vet. App. 467, 468 (1992) (where appellant filed a NOD as to an AOJ decision assigning a 30 percent rating, a statement of disagreement with a subsequent AOJ decision awarding a 50 percent rating was not an NOD that would give the CAVC jurisdiction). Accordingly, if a rating decision issued on or after February 19, 2019, adjudicates an issue that is the subject of an appeal pending in the legacy system, that decision is not an "initial" decision to which the AMA would apply. Here, the issue of SMC based on aid and attendance and housebound status was placed in appellate status with receipt of the August 2017 legacy NOD. Therefore, since the August 2020 rating decision was issued while the legacy appeal for entitlement to SMC based on aid and attendance and housebound status was pending, it does not constitute an initial decision to which the AMA applies. The legacy appeal for entitlement to SMC based on aid and attendance and housebound status was not opted into RAMP and could not have been opted into the AMA from an SOC or SSOC because none have been issued on or after February 19, 2019. As such, the AMA does not apply to the August 2020 rating decision and the Board does not have jurisdiction to address the appeal of this issue in the AMA. The Veteran was advised of the Board's jurisdictional concerns regarding the validity of this AMA appeal in July 2021. The Veteran did not submit written argument or additional evidence as to the jurisdictional question and did not request a hearing before the Board to present oral argument. (Continued on the next page) For these reasons, this purported AMA appeal of the denial of SMC based on aid and attendance and housebound status must be dismissed for lack of jurisdiction. The legacy appeal of the issue of entitlement to SMC based on aid and attendance and housebound status is still pending under the legacy appeals process and will be adjudicated in a future Board decision. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.