Citation Nr: 22018632
Decision Date: 03/30/22	Archive Date: 03/30/22

DOCKET NO. 19-21 170
DATE: March 30, 2022

ORDER

The claim of entitlement to a higher initial rating for an acquired psychiatric disability (characterized as other specified trauma and stress related disorder, to include unspecified depressive disorder (claimed as posttraumatic stress disorder (PTSD)) and psychoactive substance abuse, dependence, uncomplicated), rated as 30 percent disabling from August 8, 2013, through September 5, 2016, as 50 percent disabling from September 6, 2016, through January 15, 2020, and as 70 percent disabling on and after January 16, 2020, is dismissed.

FINDING OF FACT

In February 2021, following the issuance of a January 2021 supplemental statement of the case, the Veteran, via his accredited representative, filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which he opted in to consideration of the claim of entitlement to a higher initial rating for an acquired psychiatric disability under the Appeals Modernization Act (AMA).

CONCLUSION OF LAW

The criteria for dismissal of the claim of entitlement to a higher initial rating for an acquired psychiatric disability, rated as 30 percent disabling from August 8, 2013, through September 5, 2016, as 50 percent disabling from September 6, 2016, through January 15, 2020, and as 70 percent disabling on and after January 16, 2020 in Legacy, have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1976 to August 1977.  This matter comes before the Board on appeal from a May 2014 Regional Office (RO) rating decision.  In April 2018 and October 2020, the Veteran testified at hearings before the undersigned Veterans Law Judge.

1. The claim of entitlement to a higher initial rating for an acquired psychiatric disability, rated as 30 percent disabling from August 8, 2013, through September 5, 2016, as 50 percent disabling from September 6, 2016, through January 15, 2020, and as 70 percent disabling on and after January 16, 2020, is dismissed.

A Legacy appeal is one based on a decision issued prior to the effective date of the AMA.  A Veteran may, under certain circumstances, opt to elect consideration of a Legacy appeal under the AMA provisions.  38 C.F.R. § 3.2400.  A claimant with a Legacy appeal may elect to opt-in to the modernized review system following issuance, on or after the effective date of the modernized system, of a VA statement of the case or supplemental statement of the case, by filing for a review option under the AMA.  Id.

Here, the Veteran's claim of entitlement to a higher initial rating for an acquired psychiatric disability arose from a May 2014 rating decision that granted entitlement to service connection for other specified trauma and stress related disorder (claimed as posttraumatic stress disorder (PTSD)).  (The Board granted service connection for unspecified depressive disorder in a March 2019 decision.) The Veteran perfected an appeal of the assigned disability rating.  In the course of this appeal, a September 2016 rating decision increased this rating from 30 percent to 50 perfect effective September 6, 2016, and a January 2021 rating decision increased this rating from 50 percent to 70 percent effective January 16, 2020.  In January 2021, the RO also issued a supplemental statement of the case that addressed this issue.

In February 2021, the Veteran, via his accredited representative, filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which he opted in to consideration of the claim of entitlement to a higher initial rating for an acquired psychiatric disability under the AMA.  He requested that he be placed on the hearing docket.

In March 2021, the Veteran was sent a letter notifying him that his appeal has been placed on the hearing docket under the AMA.  The Board therefore does not have jurisdiction over the claim of entitlement to a higher initial rating for an acquired psychiatric disability in Legacy, and it must be dismissed.

  

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Elizabeth Jalley, 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.