Citation Nr: 21077427
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 19-23 352A
DATE: December 29, 2021

REMANDED

The appeal regarding entitlement to service connection for injury of the right toes is remanded.

REASONS FOR REMAND

This matter comes before the Board of Veterans' Appeals (Board) from an August 2018 rating decision by the Agency of Original Jurisdiction (AOJ).  The August 2018 rating decision was not issued under VA's Rapid Appeals Modernization Program (RAMP).

Following the August 2018 rating decision, the Veteran filed a VA Form 10182 in August 2019 attempting to appeal the denial of service connection for injury to the right toes in the AMA system.  A Board decision followed in April 2020 that denied service connection for injury to the right toes in the AMA system.  The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court).  In March 2021, the Court granted the parties' Joint Motion for Remand (JMR), vacating the Board's decision and remanding the matter for action consistent with the JMR.  

Thereafter, in a companion decision in this case, the Board dismissed the Veteran's AMA appeal based on a procedural defect, specifically that the instant appeal is not eligible for consideration under the AMA as the August 2018 rating decision was not issued under RAMP and because the August 2018 rating decision was issued prior to the date the AMA became effective.  The Veteran also did not otherwise opt into the AMA review system.  Consideration under AMA is therefore not available.

In this regard, the Board observes that in October 2021, the Court issued a decision in Hall v. McDonough, No. 19-8717.  In Hall, the Court reversed a Board decision that had dismissed an appeal for lack of jurisdiction because the Veteran's notice of disagreement (NOD) was filed on the wrong form.  The main takeaway was that, when a claimant appeals a decision governed by the prior "legacy" review system by filing a VA Form 10182, and the appeal is improperly docketed at the Board under the modernized review system (AMA), the Board may not dismiss the appeal for lack of jurisdiction but may consider dismissing it for other non-jurisdictional reasons.  Such is the case here.  The Board has dismissed the appeal insofar as review was sought under the AMA system, not because of a want of jurisdiction, but because the appeal is simply ineligible for review under the AMA system.

However, the Board has determined, for the purpose of this appeal only, that the Veteran's August 2019 VA Form 10182 may be considered a valid and timely legacy Notice of Disagreement (NOD).  The filing of a legacy NOD places a claim in appellate status.  Therefore, a statement of the case regarding this issue must be provided to the appellant in the legacy system.  As such, this issue must be remanded.  Manlincon v. West, 12 Vet. App. 239, 240-41 (1999).

The matter is REMANDED for the following action:

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Issue the Veteran a statement of the case on the issue of entitlement to service connection for injury of the right toes.  If the appellant perfects his appeal by submitting a timely and adequate substantive appeal, the AOJ should return the claim to the Board for appellate disposition.

 

 

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Barone, 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.