Citation Nr: 24005136 Decision Date: 02/01/24 Archive Date: 02/01/24 DOCKET NO. 16-43 294 DATE: February 1, 2024 ORDER This appeal seeking service connection for a left knee disability is dismissed. FINDINGS OF FACT 1. On November 30, 2023, the Agency of Original Jurisdiction issued a Supplemental Statement of the Case denying service connection for left knee disability. 2. On December 20, 2023, the Veteran and his authorized representative opted the claim for service connection for a left knee disability into the modernized process of the Appeals Modernization Act (AMA) by submitting a VA Form 20-0995 Decision Review Request: Supplemental Claim. 3. As the VA Form 20-0995 Supplemental Claim was timely filed, the Veteran's appeal seeking service connection for a left knee disability was effectively withdrawn from the Legacy appeals system. CONCLUSION OF LAW Since the Veteran timely opted into the AMA, the Board cannot adjudicate the merits of the withdrawn Legacy appeal seeking entitlement to service connection for a left knee disability, and this Legacy appeal is dismissed. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 3.2400, 19.2, 19.52 (b), 20.104 (c). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1977 to May 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision. The Board previously remanded the claim for service connection for a left knee disability for further development in October 2021, August 2022, and May 2023. In the most recent May 2023 remand, the Board requested new addendum medical opinions addressing whether the Veteran's left knee disability had its onset in service or was caused by service, and whether his left knee disability was caused or aggravated by his service-connected right knee disability. A new opinion was obtained in July 2023, and the Agency of Original Jurisdiction issued a Supplemental Statement of the Case in November 2023 denying service connection for a right knee disability. This appeal was returned to the Board in January 2023. 1. The appeal seeking service connection for a left knee disability is dismissed. The Agency of Original Jurisdiction (AOJ) issued a Supplemental Statement of the Case on November 30, 2023, that denied service connection for a left knee disability. The Veteran and his representative were notified that this Legacy appeal had been re-certified to the Board in letters dated January 3, 2024. On December 20, 2023, the Veteran submitted a VA Form 20-0995 Decision Review Request: Supplemental Claim that included the claim for service connection for a left knee disability as one of the issues he wished to pursue in the Appeals Modernization Act (AMA) system. Under the AMA, a claimant with a Legacy appeal may elect to opt-in to the modernized system following issuance of a Supplemental Statement of the Case which was issued on or after February 19, 2019. See 38 C.F.R. § 3.2400 (c)(2). The claimant my do so by filing a VA Form 20-0995 Supplemental Claim within 60 days from the date that the AOJ mails the Supplemental Statement of the Case. Id.; see also 38 C.F.R. §§ 19.2 (d)(2); 19.52 (b). Here, the Supplemental Statement of the Case denying service connection for a left knee disability was issued on November 30, 2023. The Veteran had 60 days thereafter to elect AMA modernized review. On December 20, 2023, the Veteran filed a VA Form 20-0995 Supplemental Claim which included his claim for service connection for a left knee disability. The VA Form 20-0995 is one of the form prescribed by the Secretary for opting into the AMA review system, and was received within the 60-day period allowed under 38 C.F.R. § 19.52 (b). By submitting the VA Form 20-0995, the Veteran opted his claim for service connection for a left knee disability into the AMA review system. By doing so, the Veteran withdrew the Legacy appeal as to that issue, which had previously been on appeal and remanded by the Board. While the Veteran did not specifically list the November 30, 2023 Supplemental Statement of the Case, he did list the initial April 2015 rating decision that had denied service connection for a left knee disability. Moreover, the Veteran clearly identified the claim for service connection for a left knee disability, and the VA Form 20-0995 was received within the 60-day period after the Supplemental Statement of the Case was issued. The VA Form 20-0995 itself notified the Veteran that he was agreeing to participate in the modernized review system for any issue that had been decided in a Supplemental Statement of the Case, and that he was withdrawing the eligible appeal issues from the Legacy appeals system. The VA Form 20-0995 also includes a notion indicating the Veteran would be sending additional evidence documents to VA in support of the claims listed on the form. Thereafter, the Veteran did submit a positive private medical opinion in support of the claim for service connection for a left knee disability. The Veteran submitted a new VA Form 20-0995 Supplemental Claim, listed the claim for service connection for a left knee disability in the new form, then submitted additional evidence in support of the claim soon after. The Veteran's actions reflect his intent to opt the claim for service connection for a left knee disability into the AMA modernized review system. Considering the foregoing, the Board may not review this Legacy appeal. The Veteran properly elected the AMA modernized system after the Supplemental Statement of the Case was issued on November 30, 2023, by filing a VA Form 20-0995 Supplemental Claim on December 20, 2023. This legacy appeal was re-docketed at the Board in error following the December 2023 Supplemental Claim. As such, this Legacy appeal seeking service connection for a left knee disability is dismissed. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 3.2400, 19.52 (b), 20.104 (c). SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: " Appeal to the United States Court of Appeals for Veterans Claims (Court) " File with the Board a motion for reconsideration of this decision " File with the Board a motion to vacate this decision " File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: " Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED