Citation Nr: A25035385 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 230409-337446 DATE: April 16, 2025 ORDER The appeal regarding the claim of service connection for bilateral flatfoot is dismissed. The appeal regarding the claim of service connection for Hepatitis C is dismissed. FINDING OF FACT The Veteran's Notice of Disagreement to the Board regarding the denial of service connection for bilateral flatfoot and hepatitis C in January 2023 and April 2023 respective rating decisions was filed while a VA Form 20-0996 Request for Higher Level Review (HLR) was pending before the Agency of Original Jurisdiction (AOJ) on the same issues. CONCLUSION OF LAW Due to the prohibited nature of this concurrent election, the appeal is dismissed as a matter of law. 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 March 1972 to March 1975. The rating decisions on appeal were issued in October 2022 and January 2023. These rating decisions constituted an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the April 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decisions on appeal. 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. The appeal regarding the claim of service connection for bilateral flatfoot is dismissed. 2. The appeal regarding the claim of service connection for hepatitis C is dismissed. Current regulations prohibit concurrent election of review of a VA decision under different appeal lanes. 38 C.F.R. § 3.2500 (b). In this case, the appeal before the Board is improper due to an improper concurrent appeal election. In this case, the AOJ denied service connection for bilateral flat feet in October 2022. In January 2023, the AOJ denied service connection for hepatitis C. The Veteran then filed a January 2023 and April 2023 VA Form 20-0996 Request for Higher Level Review (HLR). While a decision from the AOJ was pending on the request for HLR review, the Veteran filed a VA Form 10182 in April 2023 for direct review by the Board of the October 2022 and January 2023 VA decisions denying service connection for flat feet and Hepatitis C. This appeal is currently before the Board as a result of the VA Form 10182 filed in April 2023. In September 2024 and October 2024, a higher-level review decision was rendered pursuant to the HLR request filed. The Veteran was notified of such in September 2024 and October 2024 letters. In Terry v. McDonough, the United States Court of Appeals for Veterans Claims (Court) discussed simultaneous actions with respect to the same underlying request for benefits, noting that 38 U.S.C. § 5104C (a)(2)(A) "prevents claimants from taking simultaneous actions 'with respect to the same claim or same issue within the claim.'" See Terry v. McDonough, 37 Vet. App. 1, 13 (2023). Under 38 U.S.C. § 5104C (a)(1), a claimant may take any of the following actions on or before that date that is one year after the date on which the AOJ issues a decision with respect to that claim: file a request for higher-level review; file a supplemental claim; or file a notice of disagreement. Once a claimant takes an action set forth in 38 U.S.C. § 5104C (a)(1), the claimant may not take another action set forth in that paragraph with respect to the same claim or same issue contained within the claim until (i) the higher-level review, supplemental claim, or notice of disagreement is adjudicated; or (ii) the higher-level review, supplemental claim, or notice of disagreement is withdrawn. See also 38 C.F.R. § 3.2500 (b) (prohibiting concurrent election). In January 2025, the Board informed the Veteran that the appeal which was docketed with the Board was not proper. The letter offered the Veteran an opportunity to respond to the identified procedural defects. The Veteran was also informed that he had 60 days to respond, or the Board would dismiss the appeal. To date, the Board has not received any such response, or a request for more time to make a submission. The current appeal stemming from the April 2023 Notice of Disagreement to the October 2022 and January 2023 rating decisions was prohibited as a concurrent election, and must be dismissed as a matter of law. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.