Citation Nr: 21008963
Decision Date: 02/18/21	Archive Date: 02/18/21

DOCKET NO. 13-23 831
DATE: February 18, 2021

REMANDED

Entitlement to service connection for right shoulder traumatic arthritis and bursitis (right shoulder disorder), to include as secondary to service-connected allergic rhinitis, is remanded.

Entitlement to service connection for left shoulder traumatic arthritis and bursitis (left shoulder disorder), to include as secondary to service-connected allergic rhinitis, is remanded.

REASONS FOR REMAND

The Veteran had active service from January 1968 to September 1971.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In November 2017 and March 2020, the Board remanded these claims for further development.  

The Board acknowledges that the RO most recently issued a supplemental statement of the case (SSOC) in October 2020.  In November 2020, the Veteran filed a supplemental claim form, VA Form 20-0995, seeking service connection for his bilateral shoulder disabilities under the Appeals Modernization Act (AMA), the modernized review system. The Board notes that the Agency of Original Jurisdiction (AOJ) issued a response in December 2020 to the Veteran’s attempted November 2020 opt-in, rejecting it.  The rejection of the opt-in was an initial AOJ decision with notice on or after February 19, 2019 to which the modernized review system would apply.  Accordingly, the opt-in rejection is not subject to Board review in the current legacy appeal.  If the Veteran disagrees with the AOJ’s letter regarding the opt-in request, the proper course of action is to seek review of the AOJ’s decision in one of the three AMA review lanes.  See 38 C.F.R. § 3.2400, which addresses the applicability of AMA to decisions issued after the effective date of AMA.  See also 38 C.F.R. § 2500, which addresses the different forms of review available in AMA. 

Additionally, as the appeal is being remanded below, after the issuance of the new SSOC, the Veteran can opt into AMA by completing the proper form and checking the “opt-in from SOC/SSOC” option.  

1. Entitlement to service connection for right shoulder traumatic arthritis and bursitis (right shoulder disorder), to include as secondary to service-connected allergic rhinitis is remanded.

2. Entitlement to service connection for left shoulder traumatic arthritis and bursitis (left shoulder disorder), to include as secondary to service-connected allergic rhinitis is remanded.

After the issuance of the November 2020 SSOC, a December 2020 shoulder VA examination was associated with the claims file. To date, the RO has not issued a SSOC addressing the new VA exams. 38 C.F.R. §§ 19.31(b)(1), 19.37(b).  As such, a remand for the issuance of another SSOC is necessary.

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The matters are REMANDED for the following action:

The AOJ should issue a Supplemental Statement of the Case evaluating the Veteran's claims in light of all of the evidence of record.

 

 

D. SMART

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Lech, 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.