Citation Nr: 21025860
Decision Date: 04/29/21	Archive Date: 04/29/21

DOCKET NO. 17-02 119
DATE: April 29, 2021

ORDER

The legacy appeal with respect to the issue of entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy is dismissed.

FINDING OF FACT

In response to March 2021 Supplemental Statement of the Case, the Veteran filed an April 2021 VA Form 10182 in which he opted into the AMA system and selected the evidence submission docket.

CONCLUSION OF LAW

The Board does not presently have jurisdiction to address the merits of the Veteran’s appeal with respect to the claim of entitlement to an increased rating for right lower extremity radiculopathy.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.2400, 19.2, 19.55, 20.205.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1989 to September 1992.

A rating decision was issued under the legacy system in November 2015 granting service connection for radiculopathy of the right lower extremity and the Veteran submitted a timely notice of disagreement.  There is a significant subsequent procedural history which is set forth in full in the most recent January 2021 Board Remand and will not be repeated here.  In that remand, the Board instructed the agency of original jurisdiction (AOJ) to provide further development of the increased rating claim.  The AOJ conducted the requested development and issued a March 2021 SSOC.  

Within 60 days from the issuance of that SSOC, the Veteran opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting n April 2021 VA Form 10182, Decision Review Request: Board Appeal.  The AMA allows VA claimants with legacy appeals to opt into the modernized review system by requesting review of an SSOC issued on or after February 19, 2019 if the opt-in is elected on a form prescribed by VA for that purpose and is received within one year of the date of the notification of the underlying decision, or within 60 days from the issuance of the SSOC, whichever is later.  See 38 C.F.R. § 3.2400(c)(2).

Because the Veteran’s April 2021 VA Form 10182 was received within 60 days of the March 2021 SSOC, his request for Board review under the AMA meets the legal requirements for selecting the AMA review system.  His request must be honored.

Under the law, once an eligible claimant elects the modernized review system with respect to a particular claim, the provisions of 38 C.F.R. Parts 19 and 20 pertaining to legacy appeals no longer apply to that claim.  38 C.F.R. § 3.2400(d).  By submitting the VA Form 10182, the Veteran effectively withdrew his appeal of the right lower radiculopathy claim from the legacy system.  There remain no allegations of errors of fact or law for appellate consideration under that system.

Accordingly, the Board does not have jurisdiction to review the legacy appeal and it must be dismissed.

This issue has already been separately docketed under the AMA system, and he also has a separate AMA appeal pending concerning entitlement to service connection for a psychiatric condition. These issues will be the subjects of future Board decisions.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Kerry Hubers

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.