Citation Nr: A21018459
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 200619-92831
DATE: November 18, 2021

ORDER

Whether the Veteran has submitted new and relevant evidence to allow the readjudication of a claim of entitlement to compensation under 38 U.S.C. § 1151 for left eye, status-post retinal detachment macula off with aphakia and blepharitis, is dismissed.

FINDING OF FACT

This appeal is properly before the Veterans Benefits Administration (VBA) under the Rapid Appeals Modernization Program (RAMP).  Therefore, the Board does not have jurisdiction.

CONCLUSION OF LAW

The criteria for the dismissal of the appeal docketed as Docket No. 200619-92831 have been met.  38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. §§ 20.104, 20.205.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from July 1963 to June 1965. 

The rating decision on appeal was issued in February 2020.  However, the procedural history of this appeal is complex, so the Board finds further explanation warranted.

In June 2011, the Veteran claimed entitlement to compensation under 38 U.S.C. § 1151 for a left eye disorder.  

In September 2012, VBA, an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA), denied the claim.

In November 2012, the Veteran appealed the denial via a legacy Notice of Disagreement (NOD).

In May 2014, VBA, in response to the November 2012 NOD, issued a Statement of the Case (SOC).

In June 2014, the Veteran, in response to the May 2014 SOC, timely perfected his appeal via a VA Form 9.  For an unknown reason, VBA closed the appeal in an agency appeal tracking system.

In August 2017, the Veteran again claimed entitlement to compensation under 38 U.S.C. § 1151 for a left eye disorder.

In August 2017, the President also signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA).  This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review.

In October 2017, VBA, believing new and material evidence was required to reopen the erroneously closed claim, denied reopening of the claim.

In June 2018, the Veteran opted all his eligible appeals into the AMA by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane.  The election form stated:

By completing this form, I elect to participate in RAMP.  I am withdrawing all eligible pending compensation appeals in their entirety, and any associated hearing requests, to participate in VA's RAMP initiative and have my eligible appeals proceed under the new process described in the Appeals Modernization Act.  I understand that I cannot return to the current (legacy) appeals system for the issues withdrawn.  I also acknowledge that, in the event I want the Board to review my claim, the Board will not consider my appeal under the new process until no earlier than October 2018.  

But for VBA's error in closing out the Veteran's legacy appeal of his 38 U.S.C. § 1151 claim, VBA would have withdrawn it from the legacy system and adjudicated it as an HLR under AMA because of the June 2018 RAMP election form.  Instead, VBA adjudicated the Veteran's January 2020 Supplemental Claim in the February 2020 rating decision on appeal. The Board, upon reviewing the AMA appeal stream under Docket No. 200619-92831, discovered VBA's error.  The Board subsequently coordinated with VBA, and in November 2021, VBA notified the Board that it will correct its error by issuing an HLR decision for the 38 U.S.C. § 1151 claim.

Dismissal

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C. § 7104; 38 C.F.R. § 20.104.  Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  

As explained above, VBA, not the Board, has jurisdiction of the 38 U.S.C. § 1151 claim.  The caselaw supports the proposition that once a claim is placed in appellate status, it cannot be separated appealed by filing a new NOD. 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 NOD, the claimant may not file an additional NOD which could confer jurisdiction on the United States Court of Appeals for Veterans Claims as to that claim). Therefore, no case or controversy remains.  As such, the Board dismisses the appeal created when the Veteran submitted a VA Form 10182 on June 19, 2020, i.e., Docket 200619-92831, as moot.  

 

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Sopko, 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.