Citation Nr: A21020609 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 200520-86581 DATE: December 29, 2021 ORDER Entitlement to service connection for hearing loss is dismissed. Entitlement to service connection for tinnitus is dismissed. Entitlement to chronic coughing as due to asbestos exposure is dismissed. FINDINGS OF FACT 1. The claims for service connection for hearing loss, chronic coughing as due to asbestos exposure and tinnitus were denied in February 2008, December 2008 and October 2009 rating decisions respectively. 2. The Veteran did not submit a legacy Notice of Disagreement (NOD) to the decisions, nor was new and metrial evidence submitted within one year of receipt of notification of denial of the decisions, and the decisions became final. 3. As no NOD was received prior to the expiration of the February 2008, December 2008 and October 2009 appeal periods in the legacy system, and no Statement of the Case was issued for the Veteran to formally appeal to the Board, the Veteran's filing of a May 2020 Form 10182 NOD appeal to the Board to appeal the February 2008, December 2008 and October 2009 rating decisions was procedurally improper to appeal and there is no case or controversy within the Board's jurisdiction to adjudicate the issues. CONCLUSION OF LAW As there is no case or controversy within the Board's jurisdiction, the Veteran's service connection claims for hearing loss, tinnitus and chronic coughing as due to asbestos exposure are dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 2002 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008, December 2008 and October 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for hearing loss is dismissed. 2. Entitlement to service connection for tinnitus is dismissed. 3. Entitlement to chronic coughing as due to asbestos exposure is dismissed. In this case, the Veteran is attempting to formally appeal legacy system rating decisions issued prior to February 19, 2019, particularly those issued in 2008 and 2009, under the Appeal Modernization Act (AMA) system. However, as explained below, the Board finds that it lacks jurisdiction to adjudicate these issues. An appeal consists of a timely filed Notice of Disagreement (NOD) submitted in accordance with the provisions of § 19.21, and either 38 C.F.R. § 19.52(a) or § 20.501(a), as applicable and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 19.20. Under 38 C.F.R. § 20.202(d), the Board will not accept a NOD that is submitted in any format other than the form prescribed by the Secretary, including on a different VA Form. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. In the present case, in July 2007, the VA received the Veteran's VA 21-526 Veterans Application for Compensation or Pension claim for service connection for a cough, and partial hearing loss disabilities. In a February 2008 rating decision, the RO denied the Veteran's claims for hearing loss, as the RO found no diagnosis of hearing loss for VA purposes, and cough claimed as secondary to asbestos exposure. In February 2008, new medical records and lay statements were added to the claims file. The Veteran also underwent a VA hearing loss examination in March 2008. In a December 2008 rating, the RO continued the denial of service connection for a cough and also denied the service connection claim for tinnitus. The Veteran did not appeal the December 2008 rating decision as to the cough claim or submit new and material evidence within a year of the determination. Then, in July 2009, the VA received the Veteran's VA 21-526 Veterans Application for Compensation or Pension claim for service connection for tinnitus. In October 2009, the RO issued a rating decision again denying entitlement to service connection for tinnitus. The Veteran did not appeal the July 2009 rating decision and new and material evidence was not submitted during the appeal period. In February 2020, the VA received the Veteran's VA 21-526EZ, Fully Developed Claim (Compensation), claim for entitlement to increased ratings for service-connected disabilities and service connection for disabilities including hearing loss and tinnitus. On February 27, 2020, the VA provided the Veteran a notification letter notifying him that the form was received indicating that he requested review of the claim that was previously denied for hearing loss and tinnitus. The correspondence further provided that this request must be submitted on the proper form. The correspondence indicated that if VA notified him of the previous decision more than one year ago, and he has new and relevant evidence to submit for VA to consider, then to submit VA Form 20-0995, Decision Review Request: Supplemental Claim. The correspondence also provided notice of how to proceed if the notice of the rating decision was provided on or after February 19, 2019 or prior to February 19, 2019, but within the past year. However, on May 20, 2020, the VA received the Veteran's VA Form 10182 Notice of Disagreement, indicating his appeal of the denial of entitlement to service connection for hearing loss, tinnitus and chronic coughing as due to asbestos exposure. He selected Direct review of the evidence. The Veteran also noted the date of the rating decisions for disagreement as February 2008 and December 2008. There are currently two different ways to perfect an appeal to the Board. The first applies to claims adjudicated under VA's legacy system for VA decisions issued prior to February 19, 2019. Under the legacy system, the formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme that requires the filing of a NOD, specifically VA Form 21-0958, issuance of a SOC, and filing of a formal appeal thereafter. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.20, 19.21, 19.22. The second way to appeal a legacy decision to the Board arises under the AMA system, which requires that the legacy SOC be issued after February 19, 2019, to which the appellant must then file a timely VA Form 10182 Board NOD. 38 C.F.R. §§ 20.202-20.204. The record reflects that the Veteran did not submit a legacy NOD nor was new and material evidence received prior to the expiration of the appeal period of the February 2008 rating decision denying entitlement to service connection for hearing loss, the December 2008 rating decision denying service connection for coughing as due to asbestos exposure, and the October 2009 rating decision denying service connection for tinnitus. As such, the February 2008, December 2008 and October 2009 rating decisions became final. 38 C.F.R. § 19.52. Thus, the Veteran did not initiate a timely appeal of the claims under the legacy system, nor did he submit a valid VA Form 10182 Board NOD to appeal the claims under the AMA. The Veteran's May 2020 VA Form 10182 NOD was invalid, as it was not submitted in response to a rating decision or SOC provided on or after February 19, 2019. Due to the procedurally improper filing of a VA Form 10182 NOD in May 2020, the Board does not have jurisdiction to adjudicate the merits of the appeal of the issues as claimed in the Veteran's May 2020 NOD and must dismiss the claims. 38 C.F.R. §§ 20.201, 20.202(d), 20.104(c). The Veteran is free to submit claims as directed in the February 27, 2020 notification letter describing what forms to use under specific situations. In this case, the Veteran must first file his claim with the RO as explained in the correspondence prior to appealing to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, Associate 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.