Citation Nr: A21019455
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 200715-101912
DATE: December 7, 2021

ORDER

The appeal under Docket No. 2000715-101912H for whether new and relevant evidence has been submitted to readjudicate a previously denied claim for service connection for sleep apnea is dismissed. 

FINDINGS OF FACT

1.	On February 21, 2020, the Veteran filed a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement), electing the Direct Review docket, appealing the Agency of Original Jurisdiction's (AOJ) February 2020 denial of the claim for service connection for sleep apnea, which VA acknowledged in an April Board docketing letter, and assigned Docket Number 200225-65417.

2.	The AOJ did not have jurisdiction to issue the July 2020 rating decision, as the Veteran's claim for service connection for a sleep apnea was already pending before the Board.

CONCLUSION OF LAW

The criteria for dismissal of the Veteran's appeal Docket No. 2000715-101912H have been met. 38 U.S.C. §§ 5104C, 7105; 38 C.F.R. § 3.2500.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from May 2003 to July 2004, from June 2008 to July 2009, and from May 2011 to November 2011. 

After the AOJ adjudicates a Veteran's claim, the Veteran has one year to file a request for a higher-level review at the AOJ, a supplemental claim, or review by the Board. See 38 U.S.C. § 5104C; 38 C.F.R. § 3.2500. A Veteran is permitted to pursue only one of these avenues of review at a time. Id. Once a Veteran has made an election of one of these three options, he may not request another one of the three options on the same claim or issue until the first request is adjudicated or is withdrawn. Id.

Here, the Veteran submitted a February 21, 2020 VA Form 10182, Notice of Disagreement, electing the Direct Review docket, appealing the AOJ's February 2020 denial of the Veteran's claim for service connection for sleep apnea. This appeal was placed on the Board's Direct Review docket and assigned Docket Number 200225-65417.

On May 18, 2020, the Veteran filed a VA Form 20-0995 Decision Review Request: Supplemental Claim, listing an April 2020 AOJ rating decision and the claim for service connection for sleep apnea. On July 8, 2020, the AOJ issued a decision based on the May 18, 2020 Supplemental Claim that confirmed and continued the previous denial of the Veteran's claim for service connection for sleep apnea. The Veteran then submitted a July 2020 VA Form 10182, Notice of Disagreement, which VA acknowledged in a November 2020 docketing letter. This appeal was assigned the herein Docket No. 200715-101912. 

However, as the Veteran's appeal Docket No. 200225-65417 was pending before the Board at the time of the Veteran's supplemental claim, the AOJ did not have jurisdiction over the issue at the time of the July 8, 2020 rating decision. As such, the July 19, 2020 rating decision was spurious and issued in error. See 38 C.F.R. § 3.2500(b). The Veteran never withdrew his February 2020 VA Form 10182, and the Board has retained jurisdiction throughout this period. 

Accordingly, the Veteran's appeal Docket No. 200715-101912 is dismissed in compliance with 38 C.F.R. § 3.2500.

Notably, this dismissal does not impact the merits of the Veteran's first appeal for the same claim, which is still pending before the Board, and currently assigned Docket No. 200225-65417.

 

 

J. TUNIS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	F. Lanton, 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.