Citation Nr: 21074291 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 10-46 073 DATE: December 14, 2021 ORDER Entitlement to an initial rating higher than 10 percent prior to December 3, 2018, and higher than 40 percent since that date, for degenerative joint disease of the thoracolumbar spine status post lumbar laminectomy (back disability) is dismissed. Entitlement to an initial rating higher than 20 percent for degenerative joint disease of the left shoulder, to include impingement (left shoulder disability) is dismissed. Entitlement to an initial rating higher than 20 percent for limitation of pronation of the left elbow is dismissed. Entitlement to a rating higher than 10 percent prior to December 3, 2018, and higher than 20 percent since that date, for limitation of flexion of the left elbow is dismissed. FINDING OF FACT The Veteran has opted the claims under this docket into the modernized review system by filing a VA Form 20-0996 (Request for Higher-Level Review) in September 2021 following issuance of the August 2021 Supplemental Statement of the Case (SSOC). CONCLUSIONS OF LAW 1. Entitlement to an initial rating higher than 10 percent prior to December 3, 2018, and higher than 40 percent since that date, for degenerative joint disease of the thoracolumbar spine status post lumbar laminectomy (back disability) has been withdrawn from the legacy appeal system. 38 U.S.C. § 5104B; 38 C.F.R. §§ 3.2400, 19.2. 2. Entitlement to an initial rating higher than 20 percent for degenerative joint disease of the left shoulder, to include impingement (left shoulder disability) has been withdrawn from the legacy appeal system. 38 U.S.C. § 5104B; 38 C.F.R. §§ 3.2400, 19.2. 3. Entitlement to an initial rating higher than 20 percent for limitation of pronation of the left elbow has been withdrawn from the legacy appeal system. 38 U.S.C. § 5104B; 38 C.F.R. §§ 3.2400, 19.2. 4. Entitlement to a rating higher than 10 percent prior to December 3, 2018, and higher than 20 percent since that date, for limitation of flexion of the left elbow has been withdrawn from the legacy appeal system. 38 U.S.C. § 5104B; 38 C.F.R. §§ 3.2400, 19.2. REASONS AND BASES FOR FINDING AND CONCLUSIONS The effective date of the modernized review system is February 19, 2019. 38 C.F.R. § 19.2. The modernized review system refers to the current statutory framework for claims and appeals processing, set forth in Public Law 115-55 (Veterans Appeals Improvement and Modernization Act of 2017), and any amendments thereto, applicable on the effective date. § 19.2(b). An appellant may make an election for review of a legacy appeal in the modernized review system in accordance with sections 3.2400(c) and 19.2(d) of the regulations. § 19.2. A claimant with a legacy appeal may elect to opt-in to the modernized review system following issuance, on or after the effective date of the modernized review system, of a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC), by filing for a review option under the new system in accordance with § 3.2500 of the regulations on a form prescribed by the Secretary of VA (Secretary) within the time allowed for filing a substantive appeal under 38 C.F.R. § 19.52(b) and other applicable provisions in part 19 of 38 C.F.R. 38 C.F.R. §§ 3.2400(c)(2); 19.2(d)(2). As relevant here, the administrative review options within the modernized system include higher-level review. 38 U.S.C. § 5104B; 38 C.F.R. §§ 3.2500(a)(1)(i), 3.2601. Regarding the time allowed for filing a substantive appealand hence the time allowed for opting into the modernized system following issuance of an SOC or SSOCVA regulation provides, in pertinent part, that except in the case of simultaneously contested claims, a substantive appeal must be filed within 60 days from the date the agency of original jurisdiction (AOJ) mails the SOC to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 19.52(b). Once an eligible claimant elects the modernized review system with respect to a particular claim, the provisions of 38 C.F.R. parts 3, 19, and 20 applicable only to legacy claims and appeals no longer apply to that claim. 38 C.F.R. § 3.2400(d). Here, the Board of Veterans' Appeals (Board) remanded the matters under this docket, as listed above, in April 2021 to the AOJ. After conducting further development, the AOJ, in pertinent part, issued an SSOC in August 2021. In September 2021, the Veteran opted into the modernized review system by filing a higher-level review request (VA Form 20-0996) in response to the SSOC. He acknowledged through that form that he was withdrawing the appealed issues in their entirety from the legacy appeals system. The criteria for opting these matters into the modernized review system are met. The August 2021 SSOC was issued on or after the effective date of the modernized system, and the September 2021 higher-level review request was filed within 60 days of mailing of the SSOC, and thus within the time allowed for filing a substantive appeal under the legacy system. See 38 C.F.R. §§ 3.2400(c)(2), 19.2(d)(2); 19.52(b). Accordingly, as these matters have been effectively withdrawn from the legacy system, which no longer applies, they are dismissed. 38 C.F.R. § 3.2400(d). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.