Citation Nr: 24010656
Decision Date: 03/05/24	Archive Date: 03/05/24

DOCKET NO. 19-12 279A
DATE: March 5, 2024

REMANDED

Entitlement to service connection for lumbosacral strain with degenerative arthritis and levoscoliosis is remanded.

REASONS FOR REMAND

The Veteran, who is the appellant in this case, served on active duty from October 1989 to October 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

In April 2019, the Veteran filed a VA Form 10182 (Decision Review Request: Board Appeal) and requested a hearing before the Board.

In October 2023, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is of record and has been reviewed.

The Veteran asserts he is entitled to service connection for lumbosacral strain with degenerative arthritis and levoscoliosis.  The Board finds that remand is necessary prior to appellate review of this claim.

As noted previously, this matter comes before the Board on appeal from a December 2018 rating decision.  Notice of the rating decision was issued on December 24, 2018, which means that the matter is still under the legacy appeals system, rather than the modernized appeals system under the Appeals Modernization Act (AMA).  See 38 C.F.R. § 19.2 (providing that the effective date of the AMA is February 19, 2019).  Thus, the proper form to initiate an appeal of the December 2018 rating decision would be a VA Form 21-0958 (Notice of Disagreement) (hereinafter referred to as a "legacy NOD").

However, in Hall v. McDonough, 34 Vet. App. 329 (2021), the United States Court of Appeals for Veterans Claims (Court) held that the pre-AMA regulatory requirement that the legacy NOD be filed on a specific form was not jurisdictional in nature.  The Court characterized errors with submitting the proper appeal form as defects in compliance with "claims-processing rules" - a type of procedural defect - as opposed to jurisdictional bars.  

Based on Hall, the Board finds that in improperly docketing the appeal in this matter, the Board waived any objections regarding use of the VA Form 10182 in lieu of a legacy NOD.  Where a NOD regarding an issue has been filed but the RO has not issued a corresponding Statement of the Case (SOC), that issue is not properly before the Board and the Board must remand the claim for the limited purpose of issuing such a SOC.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  

For these reasons, the Board finds that the matter must be remanded so that the RO may issue a SOC.

As an aside, the Board notes that in a February 2024 decision, the Board dismissed the Veteran's appeal under the modernized appeals system for service connection for lumbosacral strain with degenerative arthritis and levoscoliosis for the same reasons discussed above.

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Accordingly, the matter is REMANDED for the following action:

Prepare and issue a SOC that addresses the Veteran's claim for service connection for lumbosacral strain with degenerative arthritis and levoscoliosis.  If the benefit sought is denied, the Veteran should be sent notice of his options for appeal.

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. M. Gill, 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.