Citation Nr: 21071555 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-28 634 DATE: November 30, 2021 ISSUES 1. Entitlement to service connection for rheumatoid arthritis as affecting multiple bilateral joints (other than wrist and ankle conditions). 2. Entitlement to service connection for a rheumatoid lung condition. ORDER Entitlement to service connection for rheumatoid arthritis as affecting multiple bilateral joints (other than wrist and ankle conditions) is dismissed. Entitlement to service connection for a rheumatoid lung condition is dismissed. FINDINGS OF FACT 1. In November 2021 the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of entitlement to service connection for rheumatoid arthritis as affecting multiple bilateral joints (other than wrist and ankle conditions) after the issuance of a Supplemental Statement of the Case (SSOC) in September 2021. 2. In November 2021 the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of entitlement to service connection a rheumatoid lung condition after the issuance of Supplemental Statement of the Case (SSOC) in September 2021. CONCLUSIONS OF LAW 1. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issues of entitlement to service connection for rheumatoid arthritis as affecting multiple bilateral joints (other than wrist and ankle conditions) have been met. Pub. L. 115-55; 131 Stat 1105; 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 20.205(c). 2. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issues of entitlement to service connection for a rheumatoid lung condition have been met. Pub. L. 115-55; 131 Stat 1105; 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 20.205(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1978 to January 2003. Among other awards and decorations, he is in receipt of the Bronze Star Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in January and November 2013 from a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to the benefits currently sought on appeal. Because of the evolution of this Veteran's claims, the Board finds that a brief procedural history of this case would be helpful in understanding the issues on appeal. In a January 2013 rating decision, the Veteran's disability rating (increased rating claim) for his osteoarthritis of the right ankle and left ankle, with chronic capsulitis of the subtalar joint was continued at 10 percent disabling. The Veteran filed a timely Notice of Disagreement with the January 2013 decision. In a November 2013 rating decision, the Veteran, in pertinent part was denied service connection for multiple disabilities, including rheumatoid lung nodules (claimed as rheumatoid lung condition), rheumatoid arthritis, left ankle, rheumatoid arthritis, right ankle, rheumatoid arthritis, left hand fingers, rheumatoid arthritis, right hand fingers, rheumatoid arthritis, left wrist, rheumatoid arthritis, right wrist. The Veteran filed his notice of disagreement (NOD) in January 2013 and perfected his appeal in July 2014 following a May 2014 Statement of the Case (SOC). In his VA Form 9, the Veteran requested a Board Hearing. See July 24, 2014 Form 9. As noted above, the Veteran was afforded an August 2016 Board Hearing before the undersigned Veteran's Law Judge. In a March 2018 Board decision, the Veteran's claims of entitlement to an increased rating in excess of 10 percent for osteoarthritis of the left ankle and right ankle, with chronic capsulitis of the subtalar joint were remanded for further development. Additionally, the Veteran's claims of entitlement to service connection for rheumatoid arthritis, characterized as entitlement to service connection for rheumatoid arthritis, claimed as affecting multiple bilateral joints, and as a rheumatoid lung condition were remanded for further development. The Board also remanded the Veteran's claims of entitlement to a total disability rating due to individual unemployability (TDIU) resulting from service-connected disability as "part and parcel" of the underlying rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In an October 2020 Board decision, the Veteran's increased rating and service connection claims were remanded for further development. The Veteran's claims for entitlement to a total disability rating due to individual unemployability (TDIU) were remanded as inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). In a February 2021 rating decision, service connection was granted for the left wrist and right wrist, joint involvement due to rheumatoid, effective May 22, 2012. This was considered a full grant of the benefits sought on appeal. In a February 2021 Supplemental Statement of the Case (SSOC), the Veteran's increased rating claims for osteoarthritis of the right ankle and left ankle with chronic capsulitis of the subtalar joint were continued at 10 percent disabling. Entitlement to a total disability rating due to individual unemployability (TDIU) resulting from service-connected disability remained denied. (The February 2021 SSOC did not address entitlement to service connection for a rheumatoid lung condition.) In March 2021, the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issues of entitlement to a rating in excess of 10 percent for osteoarthritis of the (1) right ankle and (2) left ankle, with chronic capsulitis of the subtalar joint and (3) entitlement a total disability rating based on individual unemployability (TDIU), after the issuance of the February 2021 SSOC. See March 12, 2021 VA Form 20-0996. In an April 2021 Board decision, the Veteran's claims were dismissed to honor the Veteran's election for a Higher-Level Review in the modernized review system. Pub. L. 115-55; 131 Stat 1105; 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d) (2), 20.205(c). In a May 2021 rating decision, the Veteran's increased rating claims for rheumatoid and osteoarthritis, subtalar joint with chronic capsulitis, right ankle and left ankle (previously rated as osteoarthritis; subtalar joint with chronic capsulitis; right ankle), were continued at 10 percent disabling. The Veteran's claim for entitlement to total disability rating based on individual unemployability (TDIU) remained denied. See May 26, 2021 rating decision. In May 2021, the Veteran requested a Higher-Level Review of the February 10, 2021 Rating Decision pertaining to the service connection grant for the left and right wrists, joint involvement due to rheumatoid, listing the issues of incorrect evaluation of the rating and an earlier effective date for the left wrist and right wrist. See May 28, 2021 VA Form 20-0996; See also, July 29, 2021 VA Form 20-0999. In a July 2021 rating decision, a duty to assist to assist error was identified during the Higher-level review for the left wrist and right wrist due to rheumatoid, to include entitlement to an earlier effective date. See July 29, 2021 rating decision. In a September 2021 rating decision, the disability rating for the left and right wrist, with joint involvement due to rheumatoid (also claimed as fingers and hands) was continued. See September 11, 2021 rating decision. In a September 2021 Supplemental Statement of the Case (SSOC), the Veteran's claims for (1) entitlement to service connection for rheumatoid arthritis as affecting multiple bilateral joints (other than wrist and ankle conditions) and (2) entitlement to service connection for a rheumatoid lung condition were denied. See September 11, 2021 SSOC. The Board observes that the September 2021, SSOC encompassed those claims that were identified in the November 2013 rating decision, but not adjudicated: rheumatoid lung condition, left hand fingers, right hand fingers. These matters returned to the Board for appellate review. The Board also notes that in an October 2021 rating decision, the Veteran's claim for entitlement to an earlier effective date for service connection for the left wrist and right wrist, joint involvement due to rheumatoid (also claimed as fingers and hands) was denied. See October 29, 2021 rating decision. After the issuance of a September 2021 Supplemental Statement of the Case (SSOC) regarding the issues of (1) entitlement to service connection for rheumatoid arthritis as affecting multiple bilateral joints (other than wrist and ankle conditions) and (2) entitlement to service connection for a rheumatoid lung condition, the Veteran filed VA Form 20-0996, electing Higher Level Review as to these issues. The issues remaining on appeal for this Veteran include (1) entitlement to service connection for rheumatoid arthritis as affecting multiple bilateral joints (other than wrist and ankle conditions) and (2) entitlement to service connection for a rheumatoid lung condition. Entitlement to service connection for rheumatoid arthritis as affecting multiple bilateral joints (other than wrist and ankle conditions) is dismissed. Entitlement to service connection for a rheumatoid lung condition is dismissed. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5). An appeal may be withdrawn as to any or all issues in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.205. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. 115-55 (to be codified at 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). The law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review and allows the Veterans' election for review of their legacy appeal in the AMA system. 38 C.F.R. § 19.2. After the issuance of a September 2021 Supplemental Statement of the Case (SSOC) regarding the issues of (1) entitlement to service connection for rheumatoid arthritis as affecting multiple bilateral joints (other than wrist and ankle conditions) and (2) entitlement to service connection for a rheumatoid lung condition, the Veteran filed VA Form 20-0996, electing Higher Level Review as to these issues. He thereby withdrew these issues from the legacy appeal system. See 38 C.F.R. § 19.2(d) (2). See November 5, 2021 Form VA Form 20-0996. (Continued on next page.) Accordingly, to honor the election for a Higher-Level Review in the modernized review system, the legacy appeals of the appealed issues are dismissed. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.