Citation Nr: 21027563 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 13-02 791 DATE: May 6, 2021 ORDER 1. Entitlement to service connection for a left hip disability is dismissed. 2. Entitlement to service connection for a right hip disability is dismissed. 3. Entitlement to service connection for hypertension is dismissed. FINDING OF FACT Regarding the claims seeking service connection for a left hip disability, a right hip disability, and hypertension, the Veteran has withdrawn his appeal from the "legacy" system; he has not yet perfected an appeal in the modernized (AMA) system. CONCLUSION OF LAW The Board lacks jurisdiction over the claims seeking service connection for a left hip disability, a right hip disability, and hypertension because the Veteran has withdrawn his appeal from the "legacy" system and not yet perfected an appeal as to those matters in the modernized (AMA) system. 38 U.S.C. § 7105(b),(d); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from December 1989 to December 1993 with additional service in the Army National Guard. The matters were originally before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision. In March 2016, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. An August 2016 Board decision, in pertinent part, found new and material evidence had not been received to reopen a claim of service-connection for PTSD and denied service connection for elevated CPK, hypertension, a disability manifested by skin rashes, and left and right hip disabilities. [The August 2016 Board decision also remanded for further development the matter of service connection for major depressive disorder. That claim was again remanded for development in September 2017. A December 2017 rating decision granted service connection for persistent depressive disorder, rated 70 percent effective June 3, 2010. Consequently, that issue is no longer before the Board.] The Veteran appealed the August 2016 Board decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in an October 2017 CAVC Order which remanded the matters for compliance with instructions in an October 2017 Joint Motion for Partial Remand (JMPR) by the parties. [In the October 2017 JMPR, the parties expressly abandoned any appeal regarding service connection for hypercholesterolemia and to reopen claims of service connection for a back disability, upper chest pain/costochondritis, and fibromyalgia. The CAVC dismissed those matters in the October 2017 Order, and those matters are no longer before the Board.] In December 2017, June 2019, and April 2020 the case was remanded for additional development. 1., 2., 3. The appeal seeking service connection for a left hip disability, a right hip disability, and hypertension is dismissed. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The implementation date for AMA was February 19, 2019. This case appears to have been docketed (recertified following remand) in error at the Board under the "legacy" system, as explained below. There are currently two different ways to perfect an appeal to the Board. First, there is the "legacy" system for VA decisions issued prior to February 19, 2019. Under the "legacy" system, the formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme that requires the filing of a notice of disagreement (NOD), specifically VA Form 21-0958, issuance of a statement of the case (SOC), and filing of a formal appeal thereafter. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.20, 19.21, 19.22. Second, under the AMA, an appeal can be perfected simply by submitting an NOD using the appropriate form, VA Form 10182, directly to the Board. As noted above, the implementation date for the AMA is February 19, 2019 so the AMA only applies to VA decisions issued beginning February 19, 2019. [For VA decisions prior to February 19, 2019, an appellant had the option to opt into VA's test program, RAMP, but the ability to do so was at specific times and by specific forms. There is no indication that the Veteran opted into RAMP.] A review of the record shows that, in addition to the procedural history outlined above, the claims were most recently remanded in April 2020 for additional development. On February 5, 2021, the Agency of Original Jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC) which continued to deny the claims. On February 18, 2021, VA received a VA Form 20-0996 (Decision Review Request: Higher-Level Review). The Veteran checked the appropriate box to opt-in from an SSOC, identified the VA decision notice as the February 5, 2021 SSOC, and properly identified the claims as those seeking service connection for a right hip disability, a left hip disability, and hypertension. On February 19, 2021, the AOJ sent the Veteran correspondence which informed him that the AOJ has withdrawn and discontinued legacy appeals processing pertaining to those three claims. The correspondence notified him that the three claims would be reviewed under the [AMA] Higher-Level Review lane. Subsequently, on February 19, 2021, the AOJ issued a Higher-Level Review rating decision which denied the claims seeking service connection for a right hip disability, a left hip disability, and hypertension. On March 31, 2021, the Board (erroneously) sent the Veteran a letter indicating his previously remanded legacy appeal had been returned to the Board. To date, VA has not received a VA Form 10182 regarding the claims seeking service connection for a right hip disability, a left hip disability, and hypertension. Upon review of the record, the Board finds that appeals seeking service connection for a right hip disability, a left hip disability, and hypertension are not currently before the Board. As noted above, the Veteran opted-in to the AMA system, which resulted in a withdrawal of the three claims from the "legacy" system. Therefore, the recertification of the three issues to the Board under the "legacy" system was improper. As noted above, VA has not received a VA Form 10182 from the Veteran (to perfect an appeal under the AMA) regarding the claims seeking service connection for a right hip disability, a left hip disability, and hypertension, which were denied in the February 19, 2021 Higher-Level Review rating decision. Therefore, he has not perfected an appeal as to those three issues under the AMA framework. Accordingly, the claims are not properly on appeal to the Board; and the improperly docketed "legacy" appeal in these matters must be dismissed for lack of jurisdiction. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.