Citation Nr: 21022177 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 07-34 973 DATE: April 15, 2021 ORDER The claim for a disability rating in excess of 70 percent for major depressive disorder is dismissed. The claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 12, 2009 is dismissed. FINDINGS OF FACT 1. In February 2021, the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of an increased rating for major depressive disorder, after the issuance of a Supplemental Statement of the Case (SSOC) in February 2021. 2. In February 2021, the Veteran opted-in to the modernized appeal system by filing a valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and listing the issue of entitlement to a TDIU prior to July 12, 2009, after the issuance of a Supplemental Statement of the Case (SSOC) in February 2021. CONCLUSIONS OF LAW 1. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issue of entitlement to an increased rating for major depressive disorder have been met. 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 19.55, 20.205(c). 2. To honor the election for a Higher-Level Review in the modernized review system, the criteria for dismissal of the legacy appeal of the issue of entitlement to a TDIU prior to July 12, 2009 have been met. 38 U.S.C. §§ 5104B, 5104C, 7105; 38 C.F.R. §§ 3.2500, 3.2601, 19.2(d)(2), 19.55, 20.205(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board denied the Veteran’s appeal. The Veteran appealed this matter to the Court of Appeals for Veterans Claims (Court). A Joint Motion for Remand (JMR) was agreed upon by the parties in December 2019, and the matter was returned to the Board. In October 2020, the Board remanded the matters for development consistent with the December 2019 JMR. Following development, the RO issued a February 2021 SSOC addressing each of the appealed issues. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5). An appeal may be withdrawn as to any or all issues in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. §§ 19.55, 20.205. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). The law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review and allows the Veterans’ election for review of their legacy appeal in the AMA system. 38 C.F.R. § 19.2. In February 2021, the Veteran submitted a signed, valid VA Form 20-0996, Decision Review Request: Higher-Level Review, and elected higher-level review of the appealed issues: increased rating for major depressive disorder and entitlement to a TDIU prior to July 12, 2009. He thereby withdrew these issues from the legacy appeal system. See 38 C.F.R. § 19.2 (d)(2). Accordingly, to honor the election for a higher-level review in the modernized review system, the legacy appeal of the issues of an increased rating for major depressive disorder and entitlement to a TDIU prior to July 12, 2009 are dismissed. The Veteran retains his rights to pursue the appealed issues in the modernized review system pursuant to 38 C.F.R. §§ 19.2 (d)(2), 20.205(c). A.J. Spector Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante, 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.