Citation Nr: 21011387
Decision Date: 03/01/21	Archive Date: 03/01/21

DOCKET NO. 14-39 851
DATE: March 1, 2021

ORDER

The Veteran's legacy appeal as to the claim of entitlement to a compensable initial rating for right eye disability is dismissed.

FINDING OF FACT

On October 15, 2019, within 60 days of the issuance of the September 24, 2019 supplemental statement of the case (SSOC), the Veteran opted into a review under the Appeals Modernization Act (AMA) by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) regarding his claim for a compensable initial rating for right eye disability. 

CONCLUSION OF LAW

The Board lacks jurisdiction to consider the Veteran’s legacy appeal as to the claim of entitlement to a compensable initial rating for right eye disability.  38U.S.C. §7105 (2012); 38C.F.R. §19.2 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from August 1974 to August 1976.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and was previously remanded by the Board in May 2018.  

A December 2019 Board decision denied the Veteran’s claim for a compensable initial rating for right eye disability.  The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand (JMR) in October 2020, remanding the matter for action consistent with terms of the JMR.

Dismissal of Legacy Claim

In this case, the Veteran submitted a VA Form 10182, Notice of Disagreement after the AOJ issued a SSOC on September 24, 2019, which was received by VA on October 15, 2019.  As this form was received within 60 days of the SSOC, the Veteran opted into the new modernized appeals review system as to the claim of entitlement to a compensable initial rating for right eye disability.  38C.F.R. §19.2(d).

The Veteran’s AMA opt-in was valid, timely, and must be honored.  38C.F.R. §§3.2400, 19.2, 19.52.  The Board does not have jurisdiction to adjudicate the Veteran’s appeal under the legacy appeals system, as doing so would deprive him of due process under law.  Accordingly, as the Board does not have jurisdiction to adjudicate the Veteran’s legacy appeal as to the claim of entitlement to a compensable initial rating for right eye disability, the legacy appeal is dismissed.  38U.S.C. §7105; 38C.F.R. §19.2.

The Veteran’s appeal as to the claim of entitlement to a compensable initial rating for right eye disability has been docketed in the Board’s modernized appeals system in accordance with his October 2019 election on the timely filed VA Form 10182.  As such, it will be adjudicated in a separate AMA decision. 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Houle, 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.