Citation Nr: A25035239
Decision Date: 04/16/25	Archive Date: 04/16/25

DOCKET NO. 201109-126794
DATE: April 16, 2025

ORDER

Service connection for a bilateral shoulder condition is dismissed.

FINDINGS OF FACT

1. The appellant did not timely file a VA Form 21-0958, Notice of Disagreement, as to the February 2016 legacy rating decision for service connection for a bilateral shoulder condition.

2. No additional rating decisions for service connection for a bilateral shoulder condition were issued in the one year prior to the filing of the November 2020 Notice of Disagreement.

CONCLUSION OF LAW

The criteria for dismissal of the appeal have been met.  38 U.S.C. §§ 511, 7104, 7105; 38 C.F.R. §§ 3.103, 20.104, 20.105, 20.201, 20.202, 20.203, 20.204.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant had active duty for training in the Army National Guard from September 2013 to April 2014, with other Reserve service.

By way of procedural background, the appellant filed a claim for VA compensation benefits in November 2015, requesting in relevant part service connection for shoulder pain.  A February 2016 rating decision issued by the Agency of Original Jurisdiction (AOJ) under the legacy appeal system denied service connection for a bilateral shoulder condition.  In February 2016, the AOJ sent a notification letter to the appellant stating that he had one year from the date of the notification letter to file a VA Form 21-0958, Notice of Disagreement, if he disagreed with the rating decision.  

In October 2020, the appellant filed a claim on VA Form 21-526EZ, requesting in relevant part service connection for right shoulder AC joint derangement and left shoulder pain disabilities.  An October 2020 notification letter informed the appellant that he needed to file the request for review of the right shoulder AC joint derangement and left shoulder pain disabilities on the proper form because of the past service connection denial for bilateral shoulder conditions.  In November 2020, the appellant filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), under the Appeals Modernization Act (AMA) system, requesting evidence submission and identifying disagreement with the October 2020 notification letter.  

The Board adjudication is limited to those matters that are perfected by filing timely appeals within the manner prescribed by applicable regulations.  See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 19.52.  The October 2020 notification letter from VA cannot serve as the basis for a Notice of Disagreement; rather, there must be an appealable merits decision denial of a claim within one year of a Notice of Disagreement.  In this case, the appellant did not file a timely VA Form 21-0958, Notice of Disagreement, regarding the February 2016 rating decision.  The Board may not consider an appeal relating to service connection in the present decision because the appellant did not comply with an essential claims processing rule.  See Hall v. McDonough, 34 Vet. App. 329 (2021) (holding that VA can require a claimant to fill out a particular form and can dismiss nonconforming or untimely filings in appropriate circumstances).  Because there is no appealable decision within one year of the November 2020 Notice of Disagreement, the Board must dismiss the appeal for service connection for a bilateral shoulder condition. 

 

 

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Beilsmith, 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.