Citation Nr: A21019484 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 190820-21639 DATE: December 7, 2021 ORDER The Appeals Modernization Act (AMA) appeal for the issue of entitlement to a rating higher than 60 percent for coronary artery disease with aortic stenosis valve replacement is dismissed as moot. The AMA appeal for the issue of entitlement to a rating higher than 30 percent for migraine headaches is dismissed as moot. The AMA appeal for the issue of entitlement to a rating higher than 20 percent for diabetes mellitus type II with erectile dysfunction, hypertension, and renal involvement is dismissed as moot. FINDINGS OF FACT 1. In August 2019, the Veteran erroneously used a VA Form 10182 to appeal a January 2021 rating (legacy) decision that denied higher ratings for the Veteran's diabetes mellitus type 2, migraine headaches, and coronary artery disease, and his appeal was subsequently docketed as an AMA appeal. 2. In August 2020, the Veteran became aware of the aforementioned claims-processing defect and corrected it by submitting an untimely legacy NOD regarding the January 2021 rating decision. 3. In a separate and concurrent decision, the Board has decided to accept the Veteran's August 2020 legacy NOD as timely. 4. This AMA appeal is therefore now moot. CONCLUSIONS OF LAW 1. The Veteran's AMA appeal for the issue of entitlement to a rating higher than 60 percent for coronary artery disease with aortic stenosis valve replacement is moot. 38 U.S.C. § 7105(d)(5). 2. The Veteran's AMA appeal for the issue of entitlement to a rating higher than 30 percent for migraine headaches is moot. 38 U.S.C. § 7105(d)(5). 3. The Veteran's AMA appeal for the issue of entitlement to a rating higher than 20 percent for diabetes mellitus type II with erectile dysfunction, hypertension, and renal involvement is moot. 38 U.S.C. § 7105(d)(5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 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. Subsequently, 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 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. 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 issues. 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 a separate decision (to be issued simultaneously with this one), the Board has decided to accept the Veteran's August 2020 legacy NOD as timely and remand the case to the AOJ for any development deemed necessary and issuance of an SOC. 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 appropriate course of action is to dismiss the AMA appeal. 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.