Citation Nr: A21020433 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 191114-88690 DATE: December 22, 2021 ORDER The issue of entitlement to an effective date earlier than July 5, 2018 for the award of service connection for migraine headaches, to include migraine variants, is dismissed. FINDINGS OF FACT 1. The rating decision underlying the present appeal was issued in November 2018 under the Legacy system of appeals. 2. In November 2019, without opting into the Rapid Appeals Modernization Program (RAMP), the Veteran attempted to initiate an appeal of the November 2018 rating decision by filing a VA Form 10182, Notice of Disagreement (NOD) under the Appeals Modernization Act (AMA) appeals system. CONCLUSION OF LAW The criteria for dismissal of entitlement to service connection for an effective date earlier than July 5, 2018 for the award of service connection for migraine headaches, to include migraine variants, have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.21, 20.104, 20.202, 20.203. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1989 to February 1992. This issue was last before the Board in August 2020 when it was dismissed for lack of jurisdiction to review the appeal, as the Veteran did not submit the proper form which would have granted jurisdiction to the Board, VA Form 21-0958, Notice of Disagreement. The Veteran appealed this dismissal to the Court of Appeals for Veterans Claims (CAVC) (Court). The Court issued a Joint Motion for Remand (JMR) directing the Board to comply with 38 C.F.R. § 20.104(c) and allow the Veteran a period of 60 days to submit evidence regarding the Board's jurisdiction over the appeal. In compliance with 38 C.F.R. § 20.104(c), the Board sent a letter to the Veteran explaining her options and giving her an opportunity to submit evidence. The 60-day period to submit evidence, argument, or request a hearing has passed, and the Veteran has not submitted any additional information. Thus, the Board now addresses the issue on appeal. The issue of entitlement to an effective date earlier than July 5, 2018 for the award of service connection for migraine headaches, to include migraine variants, is dismissed. As an initial matter, the Board notes that while this issue has been on appeal, the Court decided a precedential case in October 2021, Hall v. McDonough, and determined that the use of an improper form does not deprive the Board of jurisdiction. Accordingly, the Board decides the issue of the validity of the Veteran's appeal herein. See Hall v. McDonough, No. 19-8717, 2021 U.S. App. Vet. Claims LEXIS 1838 (Vet. App. Oct. 18, 2021). By way of background, on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), which took effect on February 19, 2019. This law created a new framework for Veterans dissatisfied with the VA decision on their claim to seek review. The new framework is generally referred to as the AMA or the modernized review system. The older appeals system which it replaced is generally referred to as the Legacy appeals system. In a Notice of Disagreement (NOD) filed on a VA Form 10182, submitted in November 2019, the Veteran attempted to file an appeal to the Board of Veterans' Appeals (Board) seeking an earlier effective date for the grant of service connection for migraines, indicating the appeal was from an April 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). She requested direct review of the evidence considered by the RO. However, the April 2019 rating decision on appeal did not address the issue of migraine headaches and as such, is inapplicable for jurisdictional purposes. 38C.F.R. §20.202. Notably, in a November 2018 rating decision, the RO granted service connection for migraine headaches. Reading the NOD liberally, the Board finds that it can be applied to the November 2018 rating decision that granted service connection for migraine headaches. The issue in dispute is whether this November 2019 VA Form 10182 constitutes a valid Board appeal for the November 2018 legacy rating decision for the claim of an earlier effective date for the grant of service connection for migraine headaches. The Board finds that it does not. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38U.S.C. §7105. It is well established that in order to appeal a rating decision in the legacy system, a written NOD must be received within one year of notification of the RO's denial of the claim. 38C.F.R. §§19.20, 19.52(a). The NOD must be filed on the form prescribed by the Secretary of VA, which is VA Form 21-0958. 38C.F.R. §19.21(a)(1). Thereafter, VA will issue a statement of the case, and if the Veteran is still dissatisfied, he or she needs to file a timely substantive appeal. See 38C.F.R. §§19.20, 19.52(b). Here, the RO issued the rating decision on appeal in November 2018, which in relevant part, granted service connection for migraines headaches. This rating decision was issued in the Legacy appeals system. The notification of this decision included an explanation of the Veteran's appellate rights, the deadlines for filing such an appeal, and a copy of the NOD form for the Veteran's use (VA Form 21-0958). See Notification letter, November 2018. The record reflects the Veteran has not submitted a NOD under the Legacy appeal system to initiate an appeal. In November 2019, the Veteran attempted to appeal the portion of the rating decision pertaining to the issue above by filing a VA Form 10182 (NOD for decisions under the modernized/AMA appeals system). However, as shown above, the Veteran was clearly notified that if she disagreed with any determination in the November 2018 rating decision, she was required to file a timely Notice of Disagreement using VA Form 21-0958 under the legacy appeal system, and she was provided with a blank copy of that form. Thus, to initiate a Board appeal, she was required to submit a properly completed VA Form 21-0958 within one year of the mailing of the November 2018 rating decision. In this regard, the Board notes that 38 C.F.R. § 19.21 (formerly 20.201) explicitly states that a legacy Notice of Disagreement must be submitted on the form provided by the Regional Office (RO) (VA Form 21-0958) and, "VA will not accept as a notice of disagreement an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result that is submitted in any other format, including on a different VA form." Consequently, the Board may not liberally construe a VA Form 10182 received within the one-year appeal period as a timely VA Form 21-0958, as the Board is precluded from accepting a VA Form 10182 as a NOD in an appeal under the Legacy appeals system. 38C.F.R. §19.21(a)(1). Accordingly, although this appeal was docketed under the AMA system, it must be dismissed, as the November 2018 rating decision could only have been appealed under the Legacy appeals system, which the Veteran did not do. Thus, for the reasons stated above, the Veteran's appeal seeking an earlier effective date for her service-connected migraine headaches must be dismissed due to her failure to comply with the appropriate claims processing rules regarding the perfection of a legacy Board appeal. 38C.F.R. §19.21(a)(1). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.