Citation Nr: 23001050
Decision Date: 01/06/23	Archive Date: 01/06/23

DOCKET NO. 20-02 691
DATE: January 6, 2023

ORDER

Entitlement to a compensable rating for herpes simplex virus, type 2, prior to September 22, 2022, is dismissed.

Entitlement to a rating in excess of 30 percent for herpes simplex virus, type 2, from September22, 2022, is dismissed.

FINDING OF FACT

The Veteran opted into the modernized review system by submitting VA Form 10182 in response to an October 2022 Supplemental Statement of the Case and her claim has been withdrawn from the Legacy appeals system.

CONCLUSION OF LAW

The criteria for no case or controversy for the appeal have been met. See 38 U.S.C. § 7105; 38 C.F.R. § 20.104(c).

REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran served on active duty from February 2003 to January 2011.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (AOJ). 

This matter was previously remanded by the Board in a decision dated August 2022.

1. Entitlement to a compensable rating for herpes simplex virus, type 2, prior to September 22, 2022.

2. Entitlement to a rating in excess of 30 percent for herpes simplex virus, type 2, from September22, 2022. 

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.104(d).

Under the modernized review system, an appeal may come to the Board in three ways: (1) through a rapid appeals modernization program rating decision; (2) an appeal from a rating decision with a notification letter dated on or after February 19, 2019; or (3) an opt-in to the AMA after a statement of the case (SOC) or supplemental statement of the case (SSOC) issued on or after February 19, 2019. See 38 C.F.R. § 3.2400(c)(1).

In this case, after the Board remanded the claim in the Legacy system, the AOJ issued an SSOC in October 2022. Subsequently, the Veteran submitted a notice of disagreement (NOD) (Form 10182) opting into the modernized appeals system requesting the Evidence Review Lane in December 2022. 

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The Veteran's election to opt into the modernized appeals system in the valid VA Form 10182 received December 2022 serves as a withdrawal of the legacy appeals seeking a higher rating for the Veteran's service-connected herpes. Accordingly, the Board finds that the Legacy appeal has effectively been withdrawn. As there remains no case or controversy under the Legacy system, the appeal is dismissed. The Veteran's claims will now proceed under the modernized appeals system. The appeal will be addressed in the modernized review system in a future Board decision.

 

 

M. Donohue

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Oquendo, 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.