Citation Nr: 22016472 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-07 211A DATE: March 22, 2022 ORDER The issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss is dismissed. REMANDED The issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a low back condition is remanded. FINDING OF FACT In April 2021, at the Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal is requested as to the appeal of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss. CONCLUSION OF LAW The criteria for withdrawal of the appeal of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205§ 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is in the Veteran's file. The issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran withdrew the appeal for whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. The withdrawal was made on the record at the hearing conducted in April 2021. The Board finds that the Veteran's withdrawal of the issue is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND The issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a low back condition is remanded. The Board notes that the Veteran's claim was initially denied in an August 2015 rating decision. In June 2018, the Veteran filed a VA Form 21-526EZ (Fully Developed Claim), listing the issue as service connection for lumbar spine strain and pain. In a July 2018 rating decision, the agency of original jurisdiction (AOJ) stated that the claim for service connection for a low back condition was not considered reopened. The Veteran was notified in July 2018 that he could submit new evidence related to the previously denied issue, file a notice of disagreement on VA Form 21-0958, or identify a clear and unmistakable error in a prior VA decision. In March 2019, the Veteran filed a VA 10182 Notice of Disagreement (NOD) and requested that his appeal be placed on the Board's Hearing Docket under VA's Appeals Modernization Act (AMA) system. A Board hearing was held by a Veterans Law Judge in April 2021. A transcript of the proceeding is of record. Importantly, the AMA only applies to claims for which VA issued an initial decision on or after February 19, 2019. Alternatively, the Veteran may elect AMA review of a legacy claim by opting into the modernized review system under the Rapid Appeals Modernization Act (RAMP) or by electing to proceed under the AMA after the issuance of a statement of the case (SOC) or supplemental statement of the case (SSOC). See 38 C.F.R. §§ 3.2400, 19.2. As the rating decision in 2018 was issued prior to the implementation of the AMA, the March 2019 VA Form 10182 was an improper form to appeal the AOJ's determination. In a recent court case, however, Hall v. McDonough, 34 Vet. App. 329 (2021), the Court of Appeals for Veterans Claims (CAVC) held that the pre-AMA regulatory requirement that the legacy NOD be filed on a specific form was not jurisdictional in nature. The CAVC characterized errors with submitting the proper appeal form as defects in compliance with "claims-processing rules" a type of procedural defect as opposed to jurisdictional bars. In this case, because the matter was docketed at the Board, it essentially waived any objection to use of the improper form for a legacy NOD. Nevertheless because it remains a legacy appeal, it requires the issuance of an SOC, to adhere to the remaining processing rules proper to that system. (The CAVC noted in Hall, the processing rules in legacy cases provide for initiation of an appeal by a NOD and perfection of the appeal after issuance of a SOC within the appropriate time periods, and that as the AOJ never issued a SOC following receipt of the Veteran's VA Form 10182, if the Board accepts the VA Form 10182 as initiating a legacy appeal, the Board has an obligation to ensure the AOJ complies with its duty to issue an SOC.) Therefore, in the instant case, the Board finds a remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200 (2018); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board recognizes that the AMA eliminated SOCs, however, the February 2019 NOD that the Board has found timely in this decision was made in response to a legacy decision and unless and until the Veteran properly opts into the AMA (which is only possible after a SOC has been issued, 38 C.F.R. §§ 19.2 (d)(2), 3.2400(c)(2)), the appeal must be considered a legacy appeal. The matter is REMANDED for the following action: Send the Veteran and his representative a Statement of the Case that addresses the issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a low back condition. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.