Citation Nr: A25035185 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241010-481756 DATE: April 16, 2025 ORDER Entitlement to service connection for hypertension, as a supplemental claim, is dismissed. Entitlement to service connection for hypertension, as a higher-level review (HLR) claim, is dismissed FINDINGS OF FACT 1. A May 2023 rating decision by the agency of original jurisdiction (AOJ), denied entitlement to service connection for hypertension. 2. The Veteran did not timely file a notice of disagreement (NOD) with respect to the May 2023 rating decision, and good cause has not been shown that would permit the Board to extend the time for filing a NOD with respect to the issue of entitlement to service connection for hypertension. 3. The Veteran filed a VA Form 20-0996 Request for Higher-Level Review (HLR) for the May 2023 rating decision, which was received by the AOJ in January 2024. 4. The AOJ issued a January 2024 rating decision finding duty to assist errors had occurred. CONCLUSIONS OF LAW 1. As proper claims processing rules have not been followed, the issue of entitlement to service connection for hypertension with respect to the May 2023 rating decision under the Appeals Modernization (AMA) system is dismissed. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2400, 20.104. 2. The criteria for dismissal of entitlement to service connection for hypertension with respect to the January 2024 rating decision are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1987 to August 1990. Historically, in a February 2011 rating decision the Veteran's claim for service connection for hypertension was denied. The Veteran did not appeal this decision or submit new and material evidence within one year. Therefore, this decision was final. 38 U.S.C. § 7105 (c) (2006); 38 C.F.R. §§ 3.104, 20.203, 20.1103 (2010). In January 2023, the Veteran filed a VA Form 20-0995 Supplemental Claim Application and requested readjudication of entitlement to service connection for hypertension most recently addressed in the February 2011 rating decision. In May 2023, the AOJ issued a supplemental claim decision, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In September 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR) of the May 2023 rating decision. The AOJ issued a January 2024 HLR rating decision finding a duty to assist error had occurred in the development of the issue on appeal. In the October 2024 VA Form 10182, Decision Review Request: Board Appeal (NOD), the Veteran identified the May 2023 rating decision and the January 2024 rating decision. The Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2023 rating decision and the January 2024 AOJ rating decision respectively. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board recognizes that in a June 2024 rating decision the AOJ denied the claim for service connection for hypertension. However, this rating decision was not appealed and is not currently before the Board. As of this writing, the Veteran still has time to appeal and may follow the instructions on the appeal rights given with the June 2024 decision in a June 14, 2024, notice letter. 1. Entitlement to service connection for hypertension, as a supplemental claim In a May 2023 rating decision, the AOJ denied the Veteran's claim of service connection for hypertension. In the Veteran's October 2024 VA Form 10182, he indicated that he was appealing the issue of service connection for hypertension. However, there is no rating decision addressing this issue within one year prior to the October 2024 VA Form 10182. As discussed herein, this issue was previously denied in a May 2023 rating decision. This appeal was filed untimely, as it is more than one year after the May 2023 rating decision. No good cause has been submitted. See Ferko v. McDonough, 37 Vet. App. 262 (2024). The Board is not waiving claims processing rules. Accordingly, the Board finds that the May 2023 rating decision is not on appeal and this appeal is dismissed. 2. Entitlement to service connection for hypertension, as a higher-level review (HLR) claim 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. Current regulations prohibit concurrent election of review of a VA decision under different appeal lanes. 38 C.F.R. § 3.2500 (b). Furthermore, a claimant is able to select a second administrative review option with respect to a decision on the claim, so long as the 1-year period from that decision has not run and the second administrative review option does not run concurrently with the first administrative review option. See Terry v. McDonough, 37 Vet. App. 1 (2023). Accordingly, multiple administrative review requests "pending concurrently" would be prohibited under 38 U.S.C. § 5104C (a)(2)(A). Id. at 3. The January 2024 HLR rating decision found a duty to assist error had occurred in the development of the Veteran's claim addressed in the May 2023 rating decision. As such, the January 2024 HLR rating decision vitiates the May 2023 rating decision and continues development of the claim. The Veteran has therefore filed two concurrent review requests for the claim adjudicated in the May 2023 rating decision, making his October 2024 NOD improper. The Board does not have jurisdiction over the present claim, and it is dismissed. 38 C.F.R. § 3.2500. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.