Citation Nr: A21020664 Decision Date: 12/30/21 Archive Date: 12/29/21 DOCKET NO. 211123-200424 DATE: December 30, 2021 ORDER The Veteran's appeal of the AOJ's October 5, 2021 rejection of his VA Form 20-0996, is denied. FINDINGS OF FACT 1. The Veteran received an August 2021 notice informing him that he may be eligible for presumptive service connection for asthma, sinusitis, or rhinitis based on his service in Southwest Asia. 2. The Veteran filed a VA 21-526EZ, Fully Developed Claim, for asthma on a presumptive basis, in August 2021. 3. The Veteran received August 2021 notice that he filed the incorrect form. 4. The Veteran filed a VA Form 20-0996, Decision Review Request, Higher Level Review in October 2021. 5. The Veteran was notified in October 2021 that the VA Form 20-0996 could not be accepted because his claim had previously been denied in May 2003, and thus the time for application had passed. 6. Thereafter, the Veteran submitted a VA Form 10182, purportedly appealing an August 2021 decision on "asthma." 6. The Veteran's previously filed claims of service connection for breathing problems claimed due to Gulf War illness, and sinusitis/allergic rhinitis were denied in an April 2003 rating decision, with notice issued in May 2003. 7. For the AOJ to adjudicate the Veteran's claim of service connection for asthma, sinusitis or rhinitis, a Supplemental Claim must be completed, utilizing VA Form 20-0995, Decision Review Request: Supplemental Claim Form. 8. The AOJ did not err in rejecting the Veteran's VA Form 20-0996, filed in October 2021. CONCLUSIONS OF LAW 1. A claimant or his or her representative who disagrees with a prior VA decision may file a supplemental claim by submitting in writing or electronically a complete application on a form prescribed by the Secretary. 38 C.F.R. §§ 3.160, 3.2501. 2. The Board will construe arguments in a liberal manner for purposes of determining whether they raise issues on appeal. 38 C.F.R. § 20.202(a). 3. Because the AOJ has not issued a decision on the merits of the Veteran's claim for service connection of asthma on a presumptive basis, the Board does not have jurisdiction to address the merits at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from July 1976 to October 1976 and September 1990 to May 1991, including service in Southwest Asia. The Veteran also has various periods of reserve service (03/25/1993 Certificate of Release or Discharge From Active Duty; 07/30/2018 Certificate of Release or Discharge From Active Duty; 07/30/2018 Military Personnel Record). This claim is before the Board from an October 5, 2021 disposition. The Agency of original jurisdiction (AOJ) did not accept the Veteran's VA Form 20-0996, because it was not timely submitted (10/01/2021 Correspondence). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA was implemented effective February 19, 2019 and automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). The appealed decision was issued after the February 19, 2019 implementation of AMA, thus this decision is drafted in accordance with AMA. The Veteran has appealed that decision, filing a November 2021 VA Form 10182, electing the Direct Review docket (11/23/2021 VA Form 10182 Notice of Disagreement). Under the AMA, when a claimant seeks appellate review through the Board's Direct Review docket, the Board may consider only the evidence of record at the time of the AOJ decision on appeal. See 38 C.F.R. § 20.301. In general, the Board is bound by favorable findings in the Rating Decision on appeal. See 38 C.F.R. § 20.801 (a). In this case, the AOJ has not identified any favorable findings. As detailed in the body of this decision, the AOJ has not issued a decision on the merits of the Veteran's claim of service connection of asthma on a presumptive basis. As such, the Board does not have jurisdiction to address the merits of that claim. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. As such, the Veteran is encouraged to submit a Supplemental Claim utilizing VA Form 20-0995, Decision Review Request: Supplemental Claim Form for his claim for asthma. The Veteran is encouraged to include any additional evidence or clarification as to any diagnoses with or treatment for asthma, sinusitis, or rhinitis within 10 years of his service in Southwest Asia, as outlined at 38 C.F.R. § 3.320, and explained in the initial August 2021. AOJ's rejection of the VA Form 20-0996, filed in October 2021. Again, because the AOJ has not issued a decision on the merits of the Veteran's claim of service connection of asthma on a presumptive basis, the Board does not have jurisdiction to address that issue. Accordingly, this decision is limited to the question of whether the AOJ erred in rejecting the Veteran's the Veteran's VA Form 20-0996, having found it was not timely submitted (10/01/2021 Correspondence). For the reasons set forth below, the Board does not find that the AOJ erred. In August 2021, the Veteran received notice that due to regulatory changes associated with service in Southwest Asia, the Veteran may be entitled to presumptive service connection for asthma, sinusitis, or rhinitis (08/23/2021 Notification Letter). The Veteran filed a VA 21-526EZ, Fully Developed Claim in August 2021 for chronic asthma, on a presumptive basis, due to his service in Southwest Asia (08/23/2021 VA 21-526EZ, Fully Developed Claim). The Veteran received August 2021 notice that he filed the incorrect form (08/24/2021 Correspondence). Thereafter, he filed a VA Form 20-0996, Decision Review Request, Higher Level Review in October 2021. The Veteran was notified in October 2021 that the VA Form VA Form 20-0996 could not be accepted because the time for application had passed, noting the Veteran's claim had been denied previously in May 2003. Thereafter, the Veteran submitted a VA Form 10182, purportedly appealing an August 2021 decision on "asthma." A review of the record reveals that the Veteran previously filed claims of entitlement to service connection for breathing problems due to Gulf War illness, and sinusitis/allergic rhinitis (02/25/1997 VA 21-526 Veterans Application for Compensation or Pension; 02/25/1997 Correspondence). Those claims were denied in an April 2003 rating decision, with notification of the decision in May 2003 (04/21/2003 Rating Decision Narrative; 05/16/2003 Notification Letter). Pursuant to governing regulation and as outlined in the notices sent to the Veteran, because the Veteran has a prior denied claim, a supplemental claim must be filed, requesting readjudication. See 38 C.F.R. §§ 3.160; 3.2501. A Supplemental Claim must be completed, utilizing VA Form 20-0995, Decision Review Request: Supplemental Claim Form. This was direction was included in prior notification to the Veteran (09/19/2021 Notification Letter). Because the correct form was not submitted, the AOJ did not err in rejecting the Veteran's VA Form 20-0996. Accordingly, the Veteran's appeal of that decision is denied. The Veteran is encouraged to submit a Supplemental Claim utilizing VA Form 20-0995, Decision Review Request: Supplemental Claim Form as soon as possible. Likewise, he is encouraged to include any additional evidence or clarification as to any diagnoses with or treatment for asthma, sinusitis, or rhinitis within 10 years of his service in Southwest Asia, as outlined at 38 C.F.R. § 3.320, and explained in the initial August 2021 notice. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.