Citation Nr: 21006450 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-45 541 DATE: February 4, 2021 ORDER Entitlement to an initial evaluation higher than 10 percent and higher than 70 percent from February 3, 2020, for service-connected posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to an evaluation higher than 10 percent for service-connected herpes simplex with urticaria is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC) in June 2020 that addressed the issues on appeal, entitlement to increased evaluations for herpes and for PTSD. 2. In July 2020, the Veteran requested to opt-in to the modernized appeals process regarding the issue of an increased evaluation for PTSD under the Appeals Modernization Act (AMA) by filing a VA Form 10-182 Board Appeal. CONCLUSION OF LAW As the Veteran timely opted into the AMA, the Board has no jurisdiction to adjudicate the merits of this legacy appeal of entitlement to an increased evaluation for PTSD, and it is accordingly dismissed. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 3.2400(c), 19.52(b), 20.104(c). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the Army from October 1984 to March 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012 decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2018 the Veteran presented testimony at a travel Board hearing before the undersigned Veterans Law Judge. In a June 2020 rating decision, service connection for migraine headaches was granted. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Veteran filed a July 2020 Board appeal with the rating assigned, however it was separately docketed under there AMA and is not considered herein. Increased Evaluation An AMA appeal comes before the Board in one of three ways: (i) an appeal of a Rapid Appeals Modernization Program (RAMP) rating decision; (ii) an appeal of a rating decision with a notification letter dated on or after February 19, 2019; or (iii) an appeal of a statement of the case (SOC) or supplemental statement of the case (SSOC) issued on or after February 19, 2019. 38 C.F.R. § 19.2 (d) (eff. Feb. 19, 2019); 38 C.F.R. § 3.2400. The Agency of Original Jurisdiction (AOJ) issued an SSOC in June 2020, continuing the denial of an increased evaluation for PTSD. Subsequently, on June 2, 2020, the Veteran requested to opt-in to the modernized appeals process under the Appeals Modernization Act (AMA) by filing a VA Form 10-182 Board Appeal regarding that issue. See 38 C.F.R. § 19.2(d). As the Veteran properly opted into the AMA system, she effectively withdrew her legacy appeal seeking an increased evaluation for PTSD. A September 2020 letter confirms the Veteran’s AMA appeal has been separately docketed under the hearing lane as requested. Accordingly, the Board lacks jurisdiction to review the legacy appeal as to this issue, and the matter is dismissed. See 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302. REASONS FOR REMAND Increased Evaluation Remand is required for the issuance of a supplemental statement of the case (SSOC). The agency of original jurisdiction (AOJ) must furnish the Veteran and his representative with an SSOC if the AOJ receives additional, pertinent evidence after an SOC or the most recent SSOC has been issued and before the appeal is certified to the Board. 38 C.F.R. § 19.31 (2019). Furthermore, any pertinent evidence submitted by a claimant or his or her representative after an appeal is certified to the Board must be referred to the AOJ, unless such evidence is accompanied by a waiver of consideration by the AOJ or the Board determines that the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304(c) (2019); Disabled American Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The appeal was remanded in July 2019. An SSOC was issued in June 2020. In September 2020 relevant VA treatment records were added to the file. The Board attempted to receive a waiver to avoid a remand. A December 2020 Board letter requested an AOJ waiver. However, the Veteran did not respond. Accordingly, remand is required for the issuance of an SSOC. The matters are REMANDED for the following action: The AOJ must readjudicate the issue on appeal considering all pertinent evidence and legal authority. If the disposition remains unfavorable, the AOJ should furnish the Veteran and his attorney with an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC must address the relevant laws and regulations applicable for entitlement to an increased evaluation for herpes simplex with urticaria. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, 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.