Citation Nr: 23027273
Decision Date: 05/08/23	Archive Date: 05/08/23

DOCKET NO. 19-23 495A
DATE: May 8, 2023

REMANDED

Service connection for emphysema is remanded.

Service connection for headache condition is remanded.

Service connection for bilateral hearing loss is remanded.

Service connection for an acquired psychiatric disorder is remanded.

Service connection for a left knee strain is remanded.

Service connection for a right knee strain is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from April 1997 to May 2000.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

1. Service connection for emphysema is remanded.

2. Service connection for headache condition is remanded.

3. Service connection for bilateral hearing loss is remanded.

4. Service connection for an acquired psychiatric disorder is remanded.

5. Service connection for a left knee strain is remanded.

6. Service connection for a right knee strain is remanded

In August 2019, the Veteran filed a VA Form 10182 Notice of Disagreement (NOD) regarding all the above issues.  VA Form 10182 is the form used for NODs filed pursuant to the Appeals Modernization Act (AMA).  As previously noted, however, the rating decision on appeal was issued September 7, 2018.  The Veteran's claim may not be properly considered under the AMA, as the rating decision was issued prior to February 19, 2019, the Veteran did not participate in the Rapid Appeals Modernization Program, and the Veteran did not opt-in to the AMA following the issuance of a statement of the case or a supplemental statement of the case. 38 C.F.R. § 19.2.

The improper filing of the August 2019 VA Form 10182, however does not deprive the Board of jurisdiction to review his claim.  See Hall v. McDonough, 34 Vet. App. 329 (2021).  Accordingly, the Board construes the Veteran's September 2019 VA Form 10182 as a legacy NOD, and the Board specifically and unequivocally finds that the Veteran's August 2019 communication is accepted as a valid NOD.  

Under the legacy system, the RO must issue a Statement of the Case (SOC) in response to a timely filed NOD, before the Veteran can (if he so chooses) appeal the case to the Board.  The RO has not done so.  Therefore, the Board is required to remand the claim for issuance of a SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).  Once the SOC has been issued, if any decisions remain averse to him, the Veteran may appeal the issues of service connection for emphysema, headaches, bilateral hearing loss, left knee strain, right knee strain, and acquired psychiatric disorder.  

The matters are REMANDED for the following actions:

Furnish the Veteran a SOC for the issues of entitlement to service connection for emphysema, headaches, bilateral hearing loss, left knee strain, right knee strain, and acquired psychiatric disorder.  

The Veteran must be informed that, to perfect an appeal on these issues, he must timely file a substantive appeal following the issuance of the SOC. If an appeal is perfected, certify that matter to the Board.

 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Higgins, J.R.

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.