Citation Nr: 23019367
Decision Date: 03/29/23	Archive Date: 03/29/23

DOCKET NO. 19-06 513
DATE: March 29, 2023

ORDER

A compensable rating for impairment of the left thigh, post left femur reconstruction surgery, is dismissed.

FINDING OF FACT

Due to a timely supplemental statement of the case (SSOC) VA Form 10182 opt-in under the Appeals Modernization Act (AMA) and since the issue on appeal was adjudicated in the AMA system, the Board does not have jurisdiction to adjudicate the legacy appeal at this time.

CONCLUSION OF LAW

Due to the prohibited nature of this concurrent appeal, the Board has no jurisdiction to adjudicate the merits of the issue on appeal in the Legacy system at this time. 38 U.S.C. § 7104; C.F.R. §§ 3.2500(b), 19.2, 20.104.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 2015 to September 2016. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The AMA became effective February 19, 2019. This law creates 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 rating 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. Current regulations prohibit concurrent election of review of a VA decision under different appeal lanes. 38 C.F.R. § 3.2500(b). Pursuant to 38 C.F.R. § 20.104, regarding jurisdiction of the Board, the Board may dismiss any case of which it determines it does not have jurisdiction.

For background purposes, in September 2019 the Board remanded, in the Legacy system, the issue on appeal, among others. In May 2020 the agency of original jurisdiction (AOJ) issued a SSOC. The Veteran opted the issue on appeal into the modernized review system, also known as the AMA, by submitting a timely June 2020 VA Form 10182 (Notice of Disagreement), Decision Review Request: Board Appeal, identifying the May 2020 SSOC and appealing the issue on appeal, among others. Subsequently, the record shows that in March 2022 the Board issued a decision under the AMA system, which adjudicated the issue on appeal, among others.

Here, in effect, an appeal was established for the same issue under both the Legacy system and the AMA system. But, as noted, a concurrent appeal is prohibited by regulation. As such, there are no valid issue on appeal under the Legacy system, and this case was improperly docketed as a Legacy appeal.

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Since there remains no allegation of error of fact or law for appellate consideration regarding this claim, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 20.104.

 

 

J. B. FREEMAN

Veterans Law Judge

Board of Veterans' Appeals

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.