Citation Nr: A21020216 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 191108-43678 DATE: December 17, 2021 ORDER Entitlement to a waiver of recovery of Department of Veteran's Affairs (VA) compensation benefits in the amount of $58,430.97, to include the validity of the debt, is dismissed. REFERRED As is noted below, in September 2014, the Veteran submitted a waiver request and also questioned the validity of the debt. The Board finds that the Veteran's September 2014 statement was a timely Notice of Disagreement (NOD) under the legacy appeals system and a timely waiver request. The Board notes that neither has been adjudicated. The AOJ should refer the issue of the validity of debt in the amount of $58,430.97 for issuance of a Statement of the Case (SOC). If the debt is deemed valid, submit the Veteran's waiver request to the Committee on Waivers and Compromises for adjudication. The issues should only be returned to the Board if an appeal is perfected. FINDING OF FACT The Veteran did not perfect an appeal under legacy or the Appeals Modernization Act (AMA). CONCLUSION OF LAW The Board has no jurisdiction to adjudicate the merits of the appeal under legacy or AMA. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1986 to July 2007. Dismiss The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. Analysis In November 2007, the Veteran was granted service connection for various disabilities. VA provided the Veteran with VA Form 21-8764 which states, in pertinent part, that compensation is subject to future adjustment, and that "benefits will be reduced upon incarceration in a Federal, State, or local penal institution in excess of 60 days for conviction of a felony." The form instructed the Veteran to immediately notify VA if there was a change in any condition affecting his right to continued payments. Failure to immediately notify VA of these changes may result in a debt that the Veteran would have to repay. In July 2011, the Veteran submitted Correspondence requesting information about his VA benefits. He stated that he had been incarcerated since 2009. In October 2013, VA received information that the Veteran had been incarcerated from July 29, 2009. Based on this information, VA proposed to reduce the Veteran's compensation to the 10 percent compensation rate effective September 28, 2009, i.e., the 61st day after the date of conviction. On May 15, 2014, VA effectuated the reduction. On May 29, 2014, the Debt Management Center assessed a debt of $58,430.97. In September 2014, the Veteran requested a waiver. The Veteran also submitted a statement stating that he responded to the overpayment letter, requested a waiver and a reason for the debt. The Veteran stated that the judge who adjudicated his criminal case told him that while incarcerated, he would be able to keep his VA benefits. The Veteran stated that he had not received benefits since the summer of 2011; therefore, he believed the debt amount was incorrect. In November 2019, the Veteran, submitted VA Form 10182, NOD, under the AMA, and disagreed with the debt. The Board notes that the AMA became effective February 19, 2019. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review and is applicable to all claims initially decided on and after that date. Regarding a legacy appeal, a legacy appeal consists of a timely filed written NOD and, after an SOC has been furnished, a timely filed Substantive Appeal/VA Form 9, Appeal to Board of Veterans' Appeals. 38 C.F.R. § 19.20. A legacy appeal is one based on a decision issued prior to the effective date of the AMA. An Appellant may, under certain circumstances, opt to elect consideration of a legacy appeal under the AMA provisions. 38 C.F.R. § 3.2400. 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 system, of a VA SOC or Supplemental Statement of the Case (SSOC), by filing for a review option under the AMA. Id. Here, the Veteran's benefits were reduced by a May 15, 2014 legacy decision, i.e., prior to the effective date of the AMA. In September 2014, the Veteran questioned the validity of the debt and requested a waiver in the legacy system. In November 2019, he filed VA Form 10182 under the AMA system. The Board notes that although the Veteran disagreed with the debt, the Board lacks jurisdiction under AMA because after filing his disagreement, the Veteran needed to wait for the issuance of an SOC in order to opt-in to the AMA system. However, VA did not issue an SOC, as such, the November 2019 opt-in to AMA is therefore invalid. Additionally, as noted above, under the legacy system, a properly completed VA Form 9 or correspondence containing the necessary information is required to appeal a decision to the Board. 38 C.F.R. § 19.22. In this case, because an SOC was not issued, the Veteran was unable to complete a VA Form 9, and, therefore, he was unable to perfect an appeal to the Board. Therefore, the Board has no jurisdiction in this instance to render a decision in the legacy or AMA system; the appeal must be dismissed. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore 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.