Citation Nr: 21012055 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-09 954 DATE: March 3, 2021 REMANDED Entitlement to a rating higher than 50 percent for the service-connected panic disorder, excluding a period of temporary total rating, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2005 to October 2009. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran waived a hearing before the Board in his February 2018 substantive appeal, via a VA Form 9. 1. Entitlement to a rating higher than 50% for the service-connected panic disorder, excluding a period of temporary total rating, is remanded. A review of the procedural history in this case is necessary to analyze issues in this case. As an initial background matter, on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). AMA became effective on February 19, 2019. Under AMA, an appeal may come to the Board in three ways: (1) timely electing to withdraw a legacy appeal and enter the RAMP program and, subsequently, appealing the RAMP rating decision to the Board; (2) appealing an AMA rating decision with a notification letter dated on or after February 19, 2019; or (3) appealing an SOC or SSOC issued in the legacy appeal system on or after February 19, 2019 by submitted the appropriate AMA appellate form. The appellate system in place prior to February 19, 2019 is referred herein to as the “legacy appeal system.” If a veteran’s appeal began in the legacy system, and the Veteran has not effectively opted into the AMA system, as set forth above, then the claim remains in the legacy appeal system until an adjudication is rendered and becomes final. The AMA and legacy appeal systems are substantively different. AMA appeals are limited to “evidence windows,” depending on the Veteran’s choice of several appeal “lanes.” On the other hand, appeals in the legacy system, unlike AMA, consider the evidence from the date of claim until adjudication is rendered and becomes final. Here, the Veteran’s appeal stems from an April 2017 legacy system rating decision, which denied an increased rating claim for the service-connected panic disorder. The Veteran filed a timely notice of disagreement, and this appeal ensued. The Board initially denied the claim in April 2019, under the legacy appellate system. On June 10, 2019, the Veteran submitted a timely notice of appeal of the April 2019 Board decision under the legacy system to the United States Court of Veterans Claims (CAVC). A review of the CAVC’s online docket does not indicate the time at which the notice of appeal was filed. Contemporaneously, on June 10, 2019, the Veteran submitted a supplemental claim to the agency of original jurisdiction (AOJ) requesting an increased rating of the service-connected panic disorder under the AMA appellate system, via a VA Form 20-0995, and enclosed additional evidence to support the claim. The fax time and date stamp indicate that the supplemental claim was received by VA at 1:41 p.m. on June 10, 2019. In October 2019, the RO, in response to the June 2019 supplemental claim, issued an AMA rating decision proposing a reduction in rating from 50 percent to 30 percent for the panic disorder. The October 2019 rating decision incorrectly stated that the Veteran had not filed a notice of appeal with CAVC. In October 2019, the Veteran’s attorney submitted a letter in response to the October 2019 AMA rating decision. The attorney reported that the Veteran had, in fact, appealed the April 2019 Board decision to CAVC on June 10, 2019, the same day the Veteran submitted the AMA supplemental claim. The attorney indicated the June 10, 2019 AMA supplemental claim form “should be considered an appeal on the Board decision dated 04/25/2019” and not a new increased rating claim, citing 38 U.S.C. § 5104C (emphasis in original). In February 2020, a joint motion for remand (JMR) was granted by CAVC, setting aside the April 2019 Board decision denying a rating higher than 50 percent for the service-connected panic disorder. CAVC’s grant of the JMR revived the legacy appeal for an increased rating claim for the panic disorder. An April 2020 rating decision finalized the rating reduction from 50 percent to 30 percent, effective July 1, 2020. In May 2020, the Veteran submitted a VA Form 20-0996, requesting a higher-level review under the AMA of the April 2020 rating decision. In August 2020, the Board again addressed the legacy appeal for a rating higher than 50 percent for the service-connected panic disorder. The Board, in the August 2020 decision, determined that it was going to honor the Veteran’s choice to file an additional increased rating claim for the panic disorder under the AMA. Furthermore, the Board determined that the Veteran’s choice to file the AMA supplemental claim limited the legacy appeal to the period of February 28, 2017 to July 1, 2020 and remanded the claim for further development with that limitation. The claim has now been returned to the Board for further appellate consideration. In this case, the rating decision on appeal was issued April 2017 under the legacy appeal system. The Veteran has not effectively opted-in to the AMA system through a timely RAMP election or by filing an AMA appeal to an SOC or SSOC issued after February 19, 2019. Furthermore, 38 C.F.R. § 3.2500(a), (b) sets forth the following: (a) Reviews available. (1) Within one year from the date on which the agency of original jurisdiction issues a notice of a decision on a claim or issue as defined in §3.151(c), except as otherwise provided in paragraphs (c), (e), and (f) of this section, a claimant may elect one of the following administrative review options by timely filing the appropriate form prescribed by the Secretary: (i) A request for higher-level review under §3.2601 or (ii) An appeal to the Board under §20.202 of this chapter. (2) At any time after VA issues notice of a decision on an issue within a claim, a claimant may file a supplemental claim under §3.2501. (b) Concurrent election prohibited. With regard to the adjudication of a claim or an issue as defined in §3.151(c), a claimant who has filed for review under one of the options available under paragraph (a) of this section may not, while that review is pending final adjudication, file for review under a different available option. While the adjudication of a specific benefit is pending on appeal before a federal court, a claimant may not file for administrative review of the claim under any of options listed in paragraph (a) of this section” (emphasis added). In this case, by contemporaneously filing a supplemental claim at the RO and a notice of appeal at CAVC, a federal court, on the same date, the Veteran improperly elected two remedies and created parallel appeal streams for the same issue, with one appeal stream in the legacy appeal system and one appeal stream in the AMA system. This outcome is specifically prohibited. Id. The Board notes that although the evidence is clear that the supplemental claim was submitted at 1:41 p.m. on June 10, 2019, both the record and CAVC’s online docket are silent as to what time the notice of appeal was filed with CAVC. The Veteran’s attorney, in the October 2019 letter, clearly clarified that the Veteran’s intent in submitting the June 10, 2019 supplemental claim was in furtherance of the appeal of the April 2019 Board denial. Further, the Veteran’s attorney put the AOJ on actual notice in the October 2019 letter that the Veteran had filed a notice of appeal to CAVC. As the evidence is not clear as to whether the notice of appeal to CAVC or the supplemental claim at the AOJ was filed first, the Board will construe any reasonable doubt in favor of the Veteran and finds that he filed the notice of appeal to CAVC “first in time” on June 10, 2019. Once the notice of appeal was submitted to CAVC, the Veteran was prohibited from concurrently filing a supplemental claim in the AMA system for the same issue, and the RO did not have jurisdiction to adjudicate the June 2020 supplemental claim. Without jurisdiction, the October 2019 and April 2020 rating decisions and subsequent October 2020 higher level review are void as a matter of law. The Board acknowledges the prior finding in the August 2020 Board remand, which found the legacy appellate period was limited to the period through July 1, 2020; however, preliminary findings in a Board remand are not binding because it is not a final decision. See 38 C.F.R. § 20.1100(b) (“A remand is in the nature of a preliminary order and does not constitute a final decision of the Board.”) After further analysis, the applicable regulations make it clear that it was not the intent of the drafters that one claim be adjudicated in both the legacy appeal system and the AMA. When CAVC granted the JMR, it revived the legacy appeal, which begins with the date of claim and continues until an adjudication by the Board becomes final. Because the Board has not yet issued an adjudication that has become final, the legacy appeal period continues beginning with the date of claim, uninterrupted. Therefore, the Board will proceed to adjudicate the increased rating claim for the service-connected panic disorder under the legacy appeal system beginning February 7, 2017 until a Board decision is issued and becomes final (excluding a period of temporary total disability). The August 2020 Board remand requested an additional medical opinion to consider evidence submitted by the Veteran in support of the claim and to reconcile potentially conflicting medical evidence regarding the occupational and social impairment caused by the service-connected panic disorder; however, the remand instructions limited the medical opinion to the period through July 1, 2020. The Veteran was afforded an additional VA psychiatric examination in October 2020. The examiner, a psychologist, conducted an examination of the Veteran and clarified the potentially conflicting medical and lay evidence of record. There is no indication in the October 2020 medical examination or medical opinion that the evidence or findings were specifically limited to the period through July 1, 2020. Thus, a new medical opinion or examination is unnecessary to adjudicate the claim at this time. However, a remand is still necessary. Because the August 2020 Board remand limited the legacy period on appeal to the period through July 1, 2020, the RO issued an SSOC that only considered the evidence through July 1, 2020. As the Board has conducted additional analysis herein and determined the appeal should have moved forward in the legacy system as usual, an initial adjudication via a SSOC by the Agency of Original Jurisdiction (AOJ) is required for the entire period on appeal, beginning February 7, 2017 forward. 38 C.F.R. §§ 19.37, 20.1304(c). 2. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The Veteran’s only service-connected disability is the panic disorder. Thus, the issue of entitlement to a TDIU is inextricably intertwined with this issue and must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Issue an SSOC for the increased rating claim for the service-connected panic disorder for the entire legacy appeal period beginning February 7, 2017 through the date the new SSOC is issued. *For clarity, per this Board decision, the legacy appellate period is no longer limited to the period through July 1, 2020, and the SSOC should consider all evidence and adjudicate the issue just like a “normal” legacy appeal. 3. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.