Citation Nr: 22016568 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-07 209A DATE: March 22, 2022 REMANDED 1. The appeal to reopen a claim of service connection for a right knee disability is remanded. 2. The appeal to reopen a claim of service connection for a left knee disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1981 to September 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2018 Legacy claim system rating decision which, in relevant part, reopened but continued to deny claims seeking service connection for left and right knee disabilities. In March 2019, VA received a VA Form 10182 and the Veteran selected the Board Hearing Lane. His appeal was docketed at the Board in the modernized review system created by the Appeals Modernization Act (AMA). In September 2021, an AMA virtual hearing was held before a Veterans Law Judge (VLJ) (other than the undersigned); a transcript is in the Veteran's record. Upon further review of the record following the September 2021 AMA hearing, and with consideration of Hall v. McDonough, 34 Vet. App. 329 (2021) a precedential case issued by the U.S. Court of Appeals for Veterans Claims (CAVC) after the September 2021 hearing and discussed further below the Board has determined that the appeal was erroneously docketed in the AMA system. See March 15, 2022 VA correspondence. As explained below, this case is being remanded under the Legacy system. 1., 2. The appeal to reopen claims of service connection for right and left knee disabilities. At the Veteran's September 2021 AMA Board hearing, the VLJ alerted the Veteran (and his agent) to a procedural defect in his appeal. The Veteran's claim for entitlement to service connection for right and left knee disabilities was denied in a November 2018 (Legacy) rating decision. The Veteran was sent a letter stating that if he disagreed with the decision he must complete a "Notice of Disagreement, VA Form 21-0958, by November 8, 2019, one year from the date of this notice." See November 8, 2018 Notification Letter. The Appeals Modernization Act (AMA) became effective February 19, 2019. This law created a new framework for Veterans dissatisfied with VA's decision on their claim to seek review, and is applicable to all claims initially decided after that date. A Legacy appeal is one based on a decision issued prior to the effective date of February 19, 2019. A Veteran may, under certain circumstances, opt in to consideration of a Legacy appeal under the AMA provisions. 38 C.F.R. § 3.2400. VA regulations require that veterans use a different Notice of Disagreement (NOD) form, VA Form 10182, when seeking Board review of decisions issued on or after that date. See 38 C.F.R. § 20.202(a), (d). In this case, in March 2019, VA received a VA Form 10182 to appeal the November 2018 rating decision, despite the fact that this rating decision remained under the domain of the Legacy system. The RO never issued a statement of the case (SOC). A May 2019 Board letter (erroneously) notified the Veteran that it had received his "Board Appeal request (VA Form 10182)" and placed his appeal on its "Hearing docket." In Hall v. McDonough, 34 Vet. App. 329 (2021), the CAVC held that where a claimant appealed a decision governed by the Legacy review system by filing a VA Form 10182, Decision Review Request: Board Appeal (NOD), and that appeal is improperly docketed at the Board under the AMA, the Board may not dismiss the appeal for lack of jurisdiction but may consider dismissing it for other non-jurisdictional reasons such as a procedural defect. Furthermore, the CAVC held that if the Board accepts such a Legacy appeal, "it has an obligation to ensure that the RO complies with its duty to issue an SOC[.]" This case remains a Legacy appeal. The Veteran submitted a timely NOD with the November 2018 rating decision, but a SOC has not been issued. As a result, a remand is required for the Agency of Original Jurisdiction (AOJ) to issue a SOC. 38 C.F.R. § 20.200 (2018); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Lastly, the Board notes that it appears that pertinent VA treatment records (constructively of record) are outstanding. Prior to the November 2018 rating decision, the Veteran reported that he received knee treatment at the Danville, Illinois VA Medical Center (VAMC) from 1993 to 1995. See September 2004 VA Form 21-4142. VA treatment records from the Indianapolis VAMC note that the Veteran underwent a left knee MRI at the Danville VAMC in 2003 or 2004 and may have been referred for non-VA orthopedic treatment. See VA treatment records dated August 25, 2004, September 2, 2004, and December 1, 2004. Notably, at the Veteran's September 2021 hearing, he testified that he had knee treatment at the Danville VAMC in 2001. All existing records of VA treatment for the disabilities at issue (any not already in the record) are pertinent evidence constructively of record that must be secured for inclusion in the record (and considered). [In the interest of efficient usage of VA resources, the Board will direct additional development for the outstanding VA treatment records, below. Such direction is wholly consistent with the United States Court of Appeals for the Federal Circuit's observation in Smith v. Shinseki, 647 F.3d 1380 (Fed. Cir. 2011) that no law or regulation precludes VA from providing additional assistance in developing a claim when it is deemed appropriate. See 38 U.S.C. § 5103A(i); see also Savage v. Shinseki, 24 Vet. App. 259, 268-71 (2011).] The matters are REMANDED for the following action: 1. Secure for the record complete records of all VA knee examinations/treatment the Veteran received at the Danville, Illinois VAMC. The search should encompass all storage facilities where such records may have been sent. If the records cannot be located because they are irretrievably lost or destroyed (or found to not have been created), it should be so certified for the record (with the scope of the search described), and the Veteran should be so notified. 2. Thereafter, send the Veteran and his representative a SOC on these matters. 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. S. CHARLES NEILL 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.