Citation Nr: 22017481 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-31 459A DATE: March 25, 2022 REMANDED The appeal of VA's February 4, 2019, non-acceptance of the VA Form 21-526EZ received on January 13, 2019, requesting reconsideration of the claim of entitlement to service connection for diabetes mellitus, type II is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1998 to November 2018. VA's non-acceptance on February 4, 2019, of the VA Form 21-526EZ requesting reconsideration of the claim of entitlement to service connection for diabetes mellitus, type II is remanded. By way of procedural background, the Veteran initially filed his claim for service connection for diabetes mellitus, type II on August 16, 2018, which was denied by VA in a rating decision issued December 13, 2018, under the legacy system. The Veteran was instructed that if he disagreed he should file a Notice of Disagreement on a VA Form 21-0985. The Veteran filed a subsequent claim that was received by VA on January 13, 2019, on a VA Form 21-526EZ for reconsideration of the claim of service connection for diabetes mellitus. In a letter dated February 4, 2019, VA acknowledged receipt of the VA Form 21-526EZ, and also noted the December 13, 2018, notification letter notified the Veteran of its prior decision on this claim. VA's letter stated it would not take any further action with respect to the Veteran's claim unless he submitted VA Form 21-4142 so that outstanding medical records could be retrieved, file a notice of disagreement by submitting VA Form 21-0958, or identify a clear and unmistakable error in a prior VA decision. On September 23, 2019, the Veteran submitted a Notice of Disagreement on a VA Form 10182 and indicated that he was appealing the February 4, 2019, decision. The Board interprets this to mean that the Veteran was appealing the VA letter dated February 4, 2019, and more specifically VA's non-acceptance of the VA Form 21-526EZ. Because the VA letter dated February 4, 2019, was issued prior to February 19, 2019, the date of implementation of the modernized review system under AMA and was not adjudicated as part of the Rapid Appeals Modernization Program (RAMP), it is not eligible for review in the modernized system. See VA Claims and Appeals Modernization, 84 Fed. Reg. 13, 138 (codified at 38 C.F.R. Parts 3, 8, 14, 19, 20, 21). In September 2021 and October 2021, the Board mailed the Veteran a letter pursuant to 38 U.S.C. § 7105 and 38 C.F.R. § 20.104(c) which informed him, essentially, that he filed his NOD on the wrong form as the VA letter dated February 4, 2019, is not eligible for AMA review as it was issued prior to February 19, 2019. Subsequently, in Hall v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1838 (October 18, 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. Instead, 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, as there was no indication that Congress intended to limit the Board's jurisdiction based on the specific form that a claimant uses to file an NOD. Therefore, the Board finds that it has jurisdiction to adjudicate this matter and the case remains in the legacy system. The Board finds that Veteran submitted a timely notice of disagreement of the February 2019 VA letter, but a Statement of the Case has not yet been issued. 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 matters are REMANDED for the following action: Send the Veteran and his representative a Statement of the Case that addresses the appeal of VA's February 4, 2019, non-acceptance of the VA Form 21-526EZ received on January 13, 2019, requesting reconsideration of the claim of entitlement to service connection for diabetes mellitus, type II. 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. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.