Citation Nr: 23017366 Decision Date: 03/20/23 Archive Date: 03/20/23 DOCKET NO. 19-13 961 DATE: March 20, 2023 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is dismissed. FINDINGS OF FACT 1. A December 2018 rating decision issued under the legacy system of appeals implemented a November 2018 Board decision awarding service connection for hearing loss and assigned a noncompensable initial rating. 2. The Veteran perfected an appeal for a higher initial rating for bilateral hearing loss under the legacy appeals review system in April 2019. 3. In December 2019, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which he requested to opt-in to the modernized review system and have his legacy appeal decided by the Board under the Direct Review docket of the modernized review system. The VA Form 10182 was received within 60 days of issuance of the October 2019 supplemental statement of the case (SSOC). 4. In January 2020, the Board notified the Veteran and his then current attorney that the December 2019 NOD had been placed on the Direct Review docket. 5. In March 2020, the Board issued a decision under the modernized review system denying entitlement to a compensable rating for bilateral hearing loss under the Direct Review docket. CONCLUSION OF LAW The criteria for dismissal of this appeal for a claims processing defect have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2400, 3.2500, 19.2, 20.301. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1967 to October 1970. As a preliminary matter, the Veteran appointed the current attorney as his representative in October 2022. The Board recognizes the change in representation. The record contains a January 2023 letter from the current attorney requesting access to the electronic claims folder through the Caseflow document processing system. The Board considers this request duplicative, as the Veteran's representative already has access to the Veteran's entire electronic claims file via the Veterans Benefits Management System (VBMS). Therefore, the representative's request for access to the identified documents has already been fulfilled and no further action is required. The Board has also considered the representative's March 2023 brief. It acknowledges that the March 2020 Board decision processed under the modernized appeals system is final. The representative asserts that the Board actions of holding a hearing and requesting a waiver of review by the agency of original jurisdiction (AOJ) constitute a motion for reconsideration of the March 2020 Board decision. A motion for reconsideration is a specific procedure that allows the Board to vacate an otherwise final decision in highly limited circumstances. 38 U.S.C. § 7103; 38 C.F.R. §§ 20.1000, 20.1001. Holding a hearing and requesting a waiver of review by the AOJ are common legacy processing actions. As detailed below, the instant legacy case is the result of a claims processing error. There is no basis to infer from these common legacy processing actions that the Board has raised a motion for reconsideration on its own volition. The representative also raises the issue of secondary disabilities, to include a psychiatric disorder and vertigo, as associated with the appealed hearing loss claim. The Board points out that there is a pending Higher Level Review request concerning these issues, see January 2023 VA Form 20-0996, and that is the appropriate proceeding during which these arguments should be addressed. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which implemented a November 2018 Board decision awarding service connection for hearing loss and assigned a noncompensable initial rating. The Veteran perfected an appeal for this issue under the legacy appeals review system by filing a notice of disagreement (NOD) in January 2019 and following the March 2019 statement of the case (SOC), an April 2019 substantive appeal. 38 C.F.R. § 19.20. In October 2019, the Agency of Original Jurisdiction (AOJ) issued a supplemental statement of the case (SSOC), which continued the denial of an initial compensable rating for bilateral hearing loss. It also included notice about the modernized review system or Appeals Modernization Act (AMA), and how to opt-in to this system following SOC/SSOC issuance. In December 2019, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (AMA NOD). It identified the hearing loss initial rating issue and date of SSOC. The Veteran marked the appropriate review box confirming that the bilateral hearing loss initial rating issue was being withdrawn from the legacy appeals process and desire to opt-in from a SOC/SSOC. 38 C.F.R. § 3.2400(c)(2). A claimant with an appeal pending under the legacy appeals review system after February 19, 2019, may elect to have that appeal reviewed under the AMA framework by timely opting-in to the modernized review system following the AOJ issuance of an SOC or SSOC. Id. A valid opt-in following an SOC or an SSOC must be filed on a VA Form 10182 (AMA NOD), which must be received within 60 days from the date that the AOJ mails the SOC or SSOC; or, within the remaining one-year period following the date on which the AOJ mailed the notification of the determination being appealed, whichever period ends later. Id.; 38 C.F.R. §§ 3.2500, 19.2(d). The December 2019 VA Form 10182 was received within 60 days after issuance of the October 2020 SSOC for entitlement to a higher initial rating for bilateral hearing loss. It is a valid opt-in from the legacy claims review system to the modernized review system for this issue. See 38 C.F.R. § § 3.2400(c)(2), 3.2500, 20.301. The appeal was then properly transferred to the modernized review system or AMA claims processing system. Id. The Board issued a January 2020 notice of docketing letter confirming receipt of the Board Appeal request via VA Form 10182 and placement on the Direct Review docket. In March 2020, the Board issued a decision denying an initial compensable rating for bilateral hearing loss under the modernized review system or AMA claims processing system. Despite the valid transfer from the legacy appeals review system to the modernized review system, the Board did not remove the legacy appeal docket and continued the legacy appeal processing with a hearing request for this issue. See April 2019 VA Form 9; October 2019 VA Form 8. In May 2022, the Veteran had a hearing before the undersigned Veterans Law Judge. The hearing concerned the issue of a higher initial rating for bilateral hearing loss under the legacy appeals review system. It was noted that there was a prior March 2020 Board decision for this issue and that typically an appeal to the United States Court of Appeals for Veterans Claims (Court) or supplemental claim would be the next appeal or claims processing step for this issue. Unfortunately, the Board in this case must find that the instant legacy appeal for a higher initial rating for bilateral hearing loss became invalid when the Veteran filed the timely AMA NOD (via VA Form 10182), which effectively transferred the appeal for the issue from the legacy appeals review system to the modernized review system. 38 C.F.R. § 3.2400(d) ("Once an eligible claimant elects the modernized review system with respect to a particular claim, the provisions of 38 CFR parts 3, 19, and 20 applicable only to legacy claims and appeals no longer apply to that claim"). The issue of a higher initial rating for bilateral hearing loss has been properly processed under the modernized review system. (Continued on the next page) The Board sincerely regrets the error in continuing to process the claim under the legacy appeal system, but the claims processing defect for the legacy appeal requires dismissal for above stated reasons. Hall v. McDonough, 34 Vet. App. 329 (2021) (while the Board has jurisdiction to hear an appeal that is not in conformity with the relevant claims processing rules, it may dismiss nonconforming filings in appropriate circumstances if it explains its reasons for doing so). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.