Citation Nr: 23045293 Decision Date: 08/15/23 Archive Date: 08/15/23 DOCKET NO. 17-39 670 DATE: August 15, 2023 ORDER The Board lacks jurisdiction to review the claim for an increased rating for a psychiatric disability under the legacy review system, and the appeal is dismissed. FINDINGS OF FACTS In April 2020, VA issued a rating decision which increased the rating for a service-connected psychiatric disability from 30 percent to 100 percent. In March 2021, the Veteran successfully opted into the Appeals Modernization Act (AMA) system by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). CONCLUSION OF LAW The criteria for dismissal of a claim under the legacy review system has been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2400, 19.2, 20.104. REASONS AND BASES FOR FINDINGS AND CONLCUSION The Veteran served on active duty from July 1979 to July 1983. The Veteran also had additional service in the Reserves. An April 2020 rating decision increased the rating for a psychiatric disability from 30 percent to 100 percent effective October 29, 2019. A May 2020 supplemental statement of the case continued the denial of an initial rating in excess of 30 percent for the psychiatric disability prior to October 29, 2019. The Veteran was sent a copy of the rating decision, the supplemental statement of the case, and VA Form 20-0998 which explained the Veteran's review options. The Veteran was notified that he could opt-in to the modernized appeal review system under the Appeals Management Act (AMA) system within 60 days from the date of statement of the or supplemental statement of the case or within the one year appeal period, whichever was later. In May 2020, the Veteran submitted VA Form 9, Appeal to Board of Veterans' Appeals, and requested a Board hearing. The Board acknowledged the Veteran's Board hearing request in June 2020 correspondence. In March 2021, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) with the "Opt-in from SOC/SSOC" box checked. Additionally, the Veteran's attached a statement to the form which indicated that the Veteran opted into the Appeals Modernization Act (AMA) System, further confirming the Veteran's intent to withdraw the issue from the legacy appeals system and opt-in to the AMA review system. 38 C.F.R. § 3.2400(c)(2). In March 2021, the Board acknowledged receipt of the Veteran's VA Form 10182 and the appeal was placed on the Board's AMA Hearing docket. Following a VA psychiatric examination, an August 2021 supplemental statement of the case continued the denial of an initial rating in excess of 30 percent for a psychiatric disability. The Veteran was sent a copy of the supplemental statement of the case, VA Form 20-0998, and a VA Modernized Decision Review System SOC/SSOC Opt-In Fact Sheet. In part, the Fact Sheet explained that once a claimant opted into the modernized review system with respect to a particular claim, VA would no longer process that claim in the legacy system and the claimant would not be able to request additional review of VA's decision under the legacy appeals process. 38 C.F.R. § 3.2400(d). In September 2021, the Veteran's attorney submitted VA Form 9 which was indicate to be in reply to the "08-30-2021 SSOC." Although the Veteran successfully opted into the AMA system and effectively withdrew the legacy appeal, the claim for an increased rating for a psychiatric disability was on the appellate docket in both the legacy and AMA systems. The Board notes that there cannot be two appeals systems in operation for the same claim at once. Therefore, the appeal of the claim for an increased rating for a psychiatric disability under the legacy system must be dismissed as that appeal was withdrawn and moved to the legacy system when the Veteran opted into the AMA system. The Board notes that the claim remains active under the AMA system and will be addressed on the merits in a separate Board decision under the AMA system. 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). Accordingly, the Board does not have jurisdiction to review the appeal under the legacy system and the legacy appeal is dismissed so that the appeal in the modernized review system may be adjudicated. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.