Citation Nr: 21072789
Decision Date: 12/06/21	Archive Date: 12/06/21

DOCKET NO. 17-06 027
DATE: December 6, 2021

ORDER

Entitlement to an increased rating for a right shoulder disability is dismissed.

Entitlement to an increased rating for an adjustment disorder, to include depressed mood, is dismissed.

Entitlement to a total disability rating based upon individual unemployability (TDIU) is dismissed.

FINDINGS OF FACT

1. In February 2020, the Veteran filed a timely VA Form 20-0996, Request for Higher Level Review (HLR) of his claims for increased ratings for his right shoulder disability and adjustment disorder  including depressed mood, as well as for a TDIU, in response to a January 2020 Statement of the Case (SOC) continuing to deny these claims.

2. He did not subsequently appeal the June and August 2020 HLR rating decisions continuing to deny these claims after those additional reviews of them in accordance with the Appeals Modernization Act (AMA). 

3. The Board consequently has no jurisdiction to decide these claims in the prior "legacy" system they are currently docketed in.

CONCLUSION OF LAW

The criteria are met in the legacy system for summary dismissal of these claims. 38 U.S.C. §§ 5104, 7104, 7105, 7108; 38 C.F.R. §§ 20.104 (c), 20.202.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active miliary service from January to November 1987.

1. Entitlement to an increased rating for a right shoulder disability is dismissed.

2. Entitlement to an increased rating for an adjustment disorder, including depressed mood, is dismissed.

3. Entitlement to a TDIU is dismissed.

Unfortunately, the Board finds that it does not presently have jurisdiction to consider these claims in the legacy system that they are currently docketed in. Specifically, as was explained in a recent October 2021 letter to the Veteran pursuant to 38 C.F.R. § 20.104(c), these claims entered the AMA appeal system, rather than the legacy appeal system, upon the filing of the February 2020 VA Form 20-0996, Request for HLR. Subsequently, in June and August 2020, HLR rating decisions were issued regarding these claims. An appeal of these claims was not then filed within the necessary time, meaning in the AMA process the Veteran opted into. 

 

Meanwhile, a March 2021 hearing concerning these claims mistakenly was held under the legacy system docket. However, the Board does not have jurisdiction to consider these claims in the legacy system. And, while regrettable, the Veteran has received appropriate notice and has been provided the requisite 60 days to file a response. As no response was received, these claims must be summarily dismissed.

 

 

Keith W. Allen

Veterans Law Judge

Board of Veterans' Appeals

R. Erdheim, Attorney for the Board	Department of Veterans Affairs

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.