Citation Nr: 21073051
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 17-10 084
DATE: December 7, 2021

ORDER

The March 2021 Board decision denying a rating in excess of 30 percent for residuals of a right elbow fracture is vacated and the legacy appeal is dismissed.

The March 2021 Board decision denying a rating in excess of 30 percent for right median nerve sensory loss of the right hand is vacated and the legacy appeal is dismissed.

FINDINGS OF FACT

1. Due to a timely post-supplemental statement of the case (SSOC) VA Form 20-0996 opt-in under the Appeals Modernization Act (AMA), the Board does not have jurisdiction to adjudicate the legacy appeal of entitlement to a rating in excess of 30 percent for residuals of a right elbow fracture at this time.

2. Due to a timely post-supplemental statement of the case (SSOC) VA Form 20-0996 opt-in under the Appeals Modernization Act, the Board does not have jurisdiction to adjudicate the legacy appeal of entitlement to a rating in excess of 30 percent for right median nerve sensory loss of the right hand at this time.

CONCLUSIONS OF LAW

1. The criteria to vacate the March 2021 Board decision denying a rating in excess of 30 percent for residuals of a right elbow fracture and dismiss the legacy appeal, have been met.  38 U.S.C. § 7104(a); 38 C.F.R. §§ 19.2, 20.1000 (formerly 38 C.F.R. § 20.904, redesignated Jan. 18, 2019).

2. The criteria to vacate the March 2021 Board decision denying a rating in excess of 30 percent for right hand median never sensory loss and dismiss the legacy appeal, have been met.  38 U.S.C. § 7104(a); 38 C.F.R. §§ 19.2, 20.1000 (formerly 38 C.F.R. § 20.904, redesignated Jan. 18, 2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

On March 29, 2021, the Board issued a legacy decision that denied an increased rating for residuals of a right elbow fracture and denied an increased rating for right hand median nerve sensory loss.  However, a timely post-supplemental statement of the case (SSOC) VA Form 20-0996, Decision Review RequestHigher-Level Review was submitted by the Veteran in response to the November 12, 2020 SSOC, properly opting the appeal into the modernized appeals system.  Accordingly, the docketing of these claims as legacy appeals was improper and they should have been dismissed for lack of jurisdiction.

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The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000.

Accordingly, the March 29, 2021 Board decision denying an increased rating for residuals of right elbow fracture and denying an increased rating for right median never sensory loss is vacated and the legacy claims are dismissed for lack of jurisdiction.

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. E. Jones, 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.