Citation Nr: 21012804 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-07 393 DATE: March 5, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus is dismissed. Entitlement to an initial disability rating in excess of 50 percent for service-connected chronic adjustment disorder with depressed mood is dismissed. Entitlement to an effective date earlier than January 20, 2017, for the award of service connection for tinnitus is dismissed. Entitlement to an effective date earlier than January 17, 2017, for the award of service connection for chronic adjustment disorder with depressed mood is dismissed. Entitlement to an effective date earlier than January 17, 2017, for the grant of basic eligibility to Dependents’ Educational Assistance (DEA) benefits is dismissed. FINDING OF FACT The Veteran has withdrawn his Legacy appeal of the above issues by electing to opt-in to the modernized review system under the Appeals Modernization Act (AMA), by filing a VA Form 20-0996, Decision Review Request, Higher Level Review, which was received on October 2, 2020. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim for entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.2, 19.55 (2019). 2. The criteria for dismissal of the claim for entitlement to an initial disability rating in excess of 50 percent for service-connected chronic adjustment disorder with depressed mood have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.2, 19.55 (2019). 3. The criteria for dismissal of the claim for entitlement to an effective date earlier than January 20, 2017, for the award of service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.2, 19.55 (2019). 4. The criteria for dismissal of the claim for entitlement to an effective date earlier than January 17, 2017, for the award of service connection for chronic adjustment disorder with depressed mood have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.2, 19.55 (2019). 5. The criteria for dismissal of the claim for entitlement to an effective date earlier than January 17, 2017, for the grant of basic eligibility to DEA have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.2, 19.55 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from April 1954 to January 1958. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2018, these issues were remanded by the Board for further development, along with a claim for entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 17, 2017. Subsequently, the Veteran was issued a supplemental statement of the case (SSOC) on January 4, 2021, addressing the claim of entitlement to TDIU prior to January 17, 2017. On January 22, 2021, the Veteran’s attorney submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), on which the attorney identified the January 2021 SSOC, referenced the issue of entitlement to TDIU prior to January 17, 2017, and elected the Evidence Submission review of this appeal through the AMA system. The attorney checked the box indicating the Veteran was opting in to the modernized review system under the AMA from a statement of the case (SOC)/SSOC and that he was withdrawing this issue from the Legacy appeals process. 38 C.F.R. § 19.2 (d)(2). The Board notes that the Veteran was issued a letter on February 22, 2021, informing him that his appeal had been placed on the Evidence Submission docket and he had 90 days from receipt of his VA Form 10182 to submit evidence. As such, this issue will be addressed accordingly in a separate Board determination under the AMA system. In May 2018 and September 2018, Veterans Law Judges, other than the undersigned, issued separate Board decisions remanding the claims of entitlement to service connection for a lumbar spine disability; entitlement to an initial compensable rating for asbestosis; and entitlement to service connection for a cervical spine disability. In a December 2020 rating decision, the RO granted service connection for a cervical strain with degenerative arthritis of the spine. This decision was a complete grant of benefits with respect to the issue of service connection pertaining to a cervical spine disability, and, thus, the claim is no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). With regard to the Veteran’s claims for entitlement to service connection for a lumbar spine disability and entitlement to an initial compensable rating for asbestosis, the Veteran was issued a SSOC on July 2, 2020, addressing these claims. On July 20, 2020, the Veteran’s attorney submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review, identifying these issues and the July 2020 SSOC. It appears that the Veteran intended to withdraw the appeal of these claims in the Legacy appeals system via this form, and a Higher Level-Review rating decision addressing these claims was then issued in August 2020. The issues listed above on the first page are dismissed. In October 2018, the Board remanded these claims to provide the Veteran a Statement of the Case (SOC), and this was done on August 26, 2020. On October 2, 2020, the Veteran’s attorney submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review. On that form, the attorney identified the August 2020 SOC and all issues listed on that SOC. The attorney checked the box indicating the Veteran was opting in to the modernized review system under the AMA from a SOC/SSOC. 38 C.F.R. § 19.2(d)(2). The form quite clearly states that any issues identified as opting in to the AMA system would be withdrawn from the Legacy appeals process. The request for a Higher-Level Review was timely. Once the Veteran withdrew his Legacy appeal, the Board no longer has jurisdiction to adjudicate it under the Legacy appeals system, and it must be dismissed. See, also, October 14, 2020 letter from the RO informing the Veteran the Legacy appeal of these issues was considered withdrawn. The RO adjudicated the issues identified on VA Form 20-0996, Decision Review Request, Higher-Level Review, in an October 13, 2020, rating decision. The Veteran was notified on October 15, 2020, of his appellate rights. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.