Citation Nr: A21020543 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 200528-88167 DATE: December 27, 2021 ORDER The issue of whether the reduction of migraine headaches, status post traumatic brain injury (TBI), from 30 percent to noncompensable was proper is dismissed. FINDING OF FACT The Veteran had a pending higher-level review request, for the issue of whether the rating reduction pertaining to migraine headaches was proper, at the time of filing his Board appeal. CONCLUSION OF LAW The issue of whether the reduction of migraine headaches, status post traumatic brain injury (TBI), from 30 percent to noncompensable was proper is dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 3.2500(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1994 to August 2014. In late 2019, the regional office (RO), sua sponte, initiated review examinations for the Veteran's service-connected disabilities relating to his traumatic brain injury (TBI). In January 2020, the Veteran underwent a VA examination to evaluate the current severity of his migraine headaches. An April 2020 rating decision continued a 70 percent rating for his psychiatric disorder and TBI, and reduced the rating for headaches, status post TBI, from 30 percent to noncompensable effective April 1, 2020. In April 2020, VA received a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), wherein the Veteran appealed the April 2020 rating decision. The exact issues he was appealing were not clearly set forth in the filing; rather, the Veteran stated that he was requesting a review of his TBI. The RO interpreted this HLR request as pertaining only to the issue of a 70 percent rating for a psychiatric disorder and TBI, and adjudicated only that issue in a subsequent May 2020 rating decision. In May 2020, VA received a VA Form 10182, Decision Review Request: Board Appeal (NOD). While the form itself didn't identify the issue(s) on appeal, an attached statement explained that the May 2020 rating decision did not adjudicate the rating reduction for headaches, which was the only issue he had requested HLR of and that had a problem with. Under 38 C.F.R. § 3.2500, claimants may elect to review a decision by the agency of original jurisdiction (AOJ) by filing a supplemental claim, HLR request, or Board appeal. Generally, a claimant may not file for a different kind of review while their initial review selection is pending, due to the rule against concurrent election. 38 C.F.R. § 3.2500(b). Here, the Board finds that the May 2020 VA Form 10182 appealed the rating reduction for migraine headaches, status post TBI, as adjudicated in the April 2020 rating decisionthis interpretation is consistent with the Veteran's filings and statements. However, the Board also finds that the April 2020 HLR request contained a request for review of this same issue. As HLR review of the rating reduction issue has not been completed, and the Veteran has not otherwise withdrawn his request for HLR of that issue, the Board finds that there is a procedural defect in claims processing rules in this appeal. Namely, the VA Form 10182 was filed while the earlier HLR request was pending. Accordingly, the appeal is dismissed due to concurrent election. 38 C.F.R. § 3.2500(b). As the AOJ has not yet adjudicated the HLR request for the rating reduction for migraine headaches, it should do so. The Veteran may also resubmit their HLR request to the AOJ or notify them that the prior request remains pending. After the AOJ renders a decision on that review request, if the benefit is not granted in full, the Veteran may continue review of the issue by filing a new review option, to include an appeal to the Board. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.