Citation Nr: 21073108 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 190820 21639 DATE: December 7, 2021 REMANDED Entitlement to a rating higher than 60 percent for coronary artery disease with aortic stenosis valve replacement is remanded. Entitlement to a rating higher than 30 percent for migraine headaches is remanded. Entitlement to a rating higher than 20 percent for diabetes mellitus type II with erectile dysfunction, hypertension, and renal involvement is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1967 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) from a January 2019 rating decision. As background, the Board notes that, on January 15, 2019, the RO sent notice to the Veteran of a January 2019 rating decision denying higher ratings for the Veteran's diabetes mellitus type 2, migraine headaches, and coronary artery disease. In its notification letter, the RO informed the Veteran that, if he wanted to appeal the January 2019 rating decision, he must complete and return a VA Form 21-0958, by January 15, 2020. The RO provided copy of this form to the Veteran. On February 19, 2019, the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), became effective. In August 2019, the Veteran filed a VA Form 10182 to request direct review of the January 2019 rating decision. VA Form 10182 is the form prescribed by VA to appeal decisions issued under the AMA's modernized appeals system. Accordingly, the Veteran's appeal was docketed as an AMA appeal. In August 2020, the Board dismissed the Veteran's AMA appeal on jurisdictional grounds. 08/18/2020, BVA Decision. Ten days after the August 2020 Board decision, the Veteran submitted an untimely VA Form 21-0958 (legacy NOD) for the January 2019 rating decision. 08/28/2020, NOD. Additionally, the Veteran appealed the August 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court granted a February 2021 joint motion for remand (JMR), thereby vacating the August 2020 Board decision and remanding the appeal back to the Board. 03/01/2021, CAVC Decision. The February 2021 JMR indicated that the Board erred by failing to provide the Veteran with adequate notice and an opportunity to respond to a potential jurisdictional defect, consistent with 38 C.F.R. § 20.104(c) (2020). The JMR further indicated that remand was warranted for the Board to ensure compliance with 38 C.F.R. § 20.104(c) and provide the Veteran with a period of 60 days to submit evidence, argument, or request a hearing, consistent with that regulation, after which the Board would determine whether it has jurisdiction over the issues on appeal, as required by 38 C.F.R. § 20.104(c). 03/01/2020, CAVC Decision. After the March 2021 Court order (granting the February 2021 JMR), the Veteran submitted a "motion to equitably toll the time period for submission of a legacy notice of disagreement (NOD)." 03/09/2021, Third Party Correspondence. The Veteran attached a new VA Form 21-0958 (legacy NOD) for the January 2019 rating decision and asked the Board to (a) apply equitable tolling, (b) accept the attached legacy NOD as timely, and (c) remand the case to Agency of Original Jurisdiction (AOJ) for any development deemed necessary and issuance of a statement of the case (SOC). The Veteran waived the 90-day period for submission of new evidence and argument after remand from the Court. Similarly, the Veteran waived the 60-day period provided under 38 C.F.R. § 20.104(c). In July 2021, the AOJ rejected the Veteran's request for an extension finding that good cause has not been provided. 07/21/21 Correspondence. In light of this and later the same month, the Board sent a letter to the Veteran, alerting the Veteran to a jurisdictional issue, specifically, the question of whether he had filed a valid Board appeal for the issues of higher ratings for diabetes mellitus type 2, migraines, and coronary artery disease per 38 C.F.R. § 20.104(c). 07/29/2021, BVA Letter. Thereafter, in August 2021, the Veteran submitted additional arguments before the Board, in support of his motion to equitably toll the time period for submission of a legacy NOD. The Veteran argued that the rule that a legacy decision must be appealed by a specific NOD form is a claims-processing rule and that the Board waived that requirement by treating the AMA NOD form as properly conferring jurisdiction over the Veteran's claims and asked the Board to take jurisdiction over his legacy appeal and issue a decision on the merits. 08/25/2021, Correspondence. Recently, in October 2021, the Court issued a precedential decision on the case Hall v. McDonough, No. 19-8717, 2021 U.S. App. Vet. Claims LEXIS 1838 (Oct. 18, 2021). In it, the Court held that the particular form a claimant submits correct or otherwise has no bearing on the Board's jurisdiction to hear an appeal. In Hall, the Board had dismissed the Veteran's claims after finding that he used the wrong form, VA Form 10182, in filing his NOD. More specifically, the Board held that it did not have jurisdiction to hear the appeal and dismissed the claims. The Court, however, found that the Board erred in dismissing the claimant's case on jurisdictional grounds, effectively preventing the claimant from participating in the adjudicative process as the Board neither heard his appeal nor explained why any formal defect in the appeal merited dismissal under a claims-processing rationale. The Court thus remanded for the Board to either hear the appeal on the merits or to provide a rationale for declining to do so, adding that if dismisses the claim, the Board should identify the governing law, any formal defects in the appeal, whether waiver or forfeiture is a relevant consideration, and any other relevant factors. *** In this case, the Veteran used the wrong form to appeal the January 2019 rating decision. Per Hall, the fact that he used the wrong form has no bearing on the Board's jurisdiction to hear his appeal. Therefore, the Veteran's appeal regarding the January 2019 rating decision is properly before the Board. As summarized above, the Veteran, in August 2020 and again in March 2021, submitted a VA Form 21-0958 (legacy NOD) for the January 2019 rating decision and, in a March 2021 motion, asked the Board to accept the legacy NOD as timely. After re-review of the relevant evidence of record, the Board finds that the appropriate course of action in this case is to accept the Veteran's August 2020 legacy NOD as timely and remand the case to the AOJ for any development deemed necessary, to include the issuance of an SOC. In reaching this conclusion, the Board notes that, by accepting the Veteran's AMA appeal form and docketing it as an AMA appeal, the Veteran was made to believe that his appeal was properly before the Board. It was not until the Board's August 2020 Board decision that the Veteran learned that his appeal had a defect. Ten days later, he corrected this procedural defect by submitting the right NOD form. In view of the above, and in the interest of full process, the Board finds that waiver of the requirement of a timely NOD is warranted in the present case. Accordingly, the Board accepts the August 2020 legacy NOD as timely. Since the AOJ has not issued an SOC regarding the appeal, the Board has no choice but to remand for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240 (1999). As a result of this decision to accept the Veteran's August 2020 legacy NOD as timely, his initial AMA appeal has now become moot. The Board will simultaneously issue a separate decision for the sole purpose of dismissing the AMA appeal as moot. These matters are REMANDED for the following actions: 1. Conduct any development deemed necessary for the issues of higher ratings for coronary artery disease, migraine headaches, and diabetes mellitus type 2. 2. Then, send the Veteran and his representative a statement of the case (SOC) that addresses the issues of higher ratings for coronary artery disease, migraine headaches, and diabetes mellitus type 2. If the Veteran perfects an appeal by submitting a timely VA Form 9, then the issues should be returned to the Board for further appellate consideration. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.