Citation Nr: AXXXXXXXX
Decision Date: 07/30/21	Archive Date: 08/03/21

DOCKET NO. 210708-171190
DATE: July 30, 2021

ORDER

The Veteran's request for Higher-Level Review (Decision Review Request: VA Form 20-0996) was untimely and the appeal must therefore be denied.

FINDINGS OF FACT

1. On March 28, 2016, the Agency of Original Jurisdiction (AOJ) issued a rating decision denying service connection for hearing loss and tinnitus and notifying the Veteran that he had one year from the date of the notice to appeal the decision.

2. The Veteran did not appeal the March 2016 decision within the one-year period; VA received a VA Form 20-0996, seeking Higher-Level Review of the March 2016 decision, on June 23, 2021.

CONCLUSION OF LAW

A VA Form 20-0996 dated in June 2021, in response to a March 2016 rating decision, was untimely.  38 U.S.C. § 7105; 38 C.F.R. §§ 19.2(d)(2), 19.21, 19.52, 3.2400(c)(2), 3.2500, 3.2601.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from August 1947 to July 1970.

This matter comes before the Board of Veterans' Appeals (Board) from a June 2021 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's request for Higher-Level Review of a March 2016 rating decision. 

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA applies to all claims for which VA issued notice of an initial decision on or after February 19, 2019. 38 C.F.R. §§ 3.2400(a)(1); 19.2(a).

Decisions issued prior to February 19, 2019, that do not meet the above criteria, are decided under the legacy system (the pre-AMA framework).

Under the legacy system, a veteran may appeal an AOJ decision by filing a VA Form 21-0958 (Notice of Disagreement). See 38C.F.R. §§19.20, 19.21. Current VA regulations require that all claims filed on or after March 24, 2015, be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. Id.  Moreover, current VA regulations indicate that the filing of an alternate form or other communication will not extend, toll, or otherwise delay the time limit for filing a Notice of Disagreement (NOD), including returning the incorrect VA form and/or a form designed to appeal a different benefit. 38 C.F.R. § 19.21(a)(5). Under 38 C.F.R. § 20.202(d), the Board will not accept a NOD that is submitted in any format other than the form prescribed by the Secretary, including on a different VA Form.

The Board notes that as the March 2016 rating decision the Veteran sought to appeal was issued prior to February 19, 2019, prior to the implementation of the AMA, the legacy framework was applicable for adjudication.

The AOJ denied service connection for hearing loss and tinnitus in a March 2016 rating decision. Notice of the decision was issued to the Veteran on March 28, 2016. The notification letter informed the Veteran that, to begin his appeal of the rating decision, he must submit a VA Form 21-0958 within one year from the date of notification. The VA Form 21-0958 was enclosed in the notification. The Veteran did not initiate an appeal with an NOD, and new and relevant evidence was not received within one year. Thus, the March 2016 rating decision became final. 38 U.S.C. § 7105; 38C.F.R. § 20.202.

In June 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review, in June 2021.  In a letter sent to the Veteran the same month, the AOJ rejected the request as the one-year time limit had passed.  

The Veteran subsequently submitted a VA Form 10182 in July 2021, requesting direct review of the AOJ decision.  

Based on review of the record, the Board finds that the Veteran did not file a timely NOD to the March 2016 rating decision. Specifically, the VA Form 20-0996, Decision Review Request: Higher-Level Review, received in June 2021 is untimely.

The Veteran was notified in the March 2016 letter that he had one year from the date of the letter to appeal the rating decision, and he was provided a VA Form 21-0958. However, he did not initiate an appeal nor submit new and material evidence within the one-year period. Further, VA Form 20-0996 is not a valid form of NOD under the legacy system. In sum, the Board finds that the AOJ properly rejected the Veteran's June 2021 request for Higher-Level Review of the previously, unappealed March 2016 rating decision.

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For the foregoing reasons, the Veteran's appeal of whether a timely request for a Higher-Level Review was received for the March 2016 rating decision must be denied as a matter of law. Should the Veteran wish to pursue his claim, he may file a VA Form 20-0995 (Decision Review Request: Supplemental Claim) and submit or identify other evidence. See 38 C.F.R. § 3.2501.

 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Ahmad

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.