Citation Nr: 21026611 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 06-37 008 DATE: May 3, 2021 ORDER Entitlement to secondary service connection for a cervical spine disorder, to include based on aggravation from service-connected asthma, is dismissed. FINDING OF FACT 1. In a November 2020 decision, the Board remanded the legacy appeal of the issue of entitlement to secondary service connection for a cervical spine disorder, to include based on aggravation from service-connected asthma. 2. In December 2020, the Agency of Original Jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC), which readjudicated the issue of entitlement to secondary service connection for a cervical spine disorder, to include based on aggravation from service-connected asthma. 3. In January 2021, the Veteran opted into the Appeals Modernization Act (AMA) review system (and thereby withdrew her legacy appeal) by submitting a timely VA Form 20-0996, Request for a Higher-Level Review, of the issue addressed in the December 2020 SSOC of entitlement to secondary service connection for a cervical spine disorder. CONCLUSION OF LAW The Board does not presently have jurisdiction to consider the merits of the Veteran's legacy appeal regarding entitlement to secondary service connection for a cervical spine disorder, to include based on aggravation from service-connected asthma. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2400, 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1962 to June 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a cervical spine disorder. In September 2018, the Board, in pertinent part, denied entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected asthma. The Veteran appealed the Board's 2018 decision to the United States of Appeal for Veteran's Claims (CAVC). In a December 2019 memorandum decision, CAVC vacated that portion of the Board's September 2018 decision that denied service connection for a cervical spine disorder based on aggravation only. Subsequently, in August 2020 and again in November 2020, the Board remanded this matter for additional development. Following the completion of this development, the RO issued a Supplemental Statement of the Case (SSOC), which continued to deny service connection for a cervical spine disorder. Within 60 days of the mailing of the SSOC to the Veteran, in January 2021, VA received a VA Form 20-0996, Decision Review Request: Higher Level Review, which requested review of the issue of service connection for a cervical spine disorder from the December 2020 SSOC. The issue was not properly removed from the Legacy appeal process and was returned to the Board. 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). As the Veteran's VA Form 20-0996 was received within 60 days of the December 2020 SSOC, her request for Higher-Level Review satisfies the legal requirements for opting into the AMA review system. That 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. See 38 C.F.R. § 3.2400(d). By submitting the VA Form 20-0996, the Veteran effectively withdrew her appeal with respect to the issue of entitlement to service connection for a cervical spine disorder from the legacy system. As such, 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. In dismissing this issue, the Board does not make any rulings on the merits of the Higher-Level Review claim. As a related matter, the Board notes that the AOJ issued a rejection of the Veteran's initial November 2020 request to Opt-In through Form 20-0995 in a December 2020 letter, stating it could not be processed because the Board had issued the November 2020 remand decision prior to receipt of the November 2020 supplemental claim application. However, the AOJ then issued the December 2020 SSOC, and the January 2021 post-SSOC Opt-In occurred within 60 days of the issuance of the SSOC; but the RO did not act on this opt-in, but rather returned the appeal to the Board in January 2021. In a second letter sent February 2021, the Veteran's attorney argues the case being back on the Board's docket is in error as the Veteran requested to opt-in to the AMA on January 12, 2021 and requested a higher-level review hearing be conducted. Therefore, there remains no doubt that the Veteran intends to withdraw her appeal in the legacy system, and pursue her claim in AMA. Additionally, it appears the AOJ has not yet acted on or adjudicated the Veteran's request for higher level review with respect to the issue of entitlement to service connection for the cervical spine disorder as listed on the January 2021 VA Form 20-0996, under the Higher-Level Review system; therefore, it is REFERRED for consideration. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.