Citation Nr: A25035482 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 231116-392693 DATE: April 17, 2025 ORDER Entitlement to service connection for cerebrovascular accident (stroke) is dismissed. FINDING OF FACT The November 2023 Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) concerning the issue of entitlement to service connection for cerebrovascular accident (stroke) results from an impermissible concurrent election and was docketed by the Board in error. CONCLUSION OF LAW The criteria for dismissal of Service connection for cerebrovascular accident (stroke) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1979 until October 1999. The rating decision on appeal was issued in October 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the November 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 October 2023 agency of original jurisdiction (AOJ) decision 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 claim cerebrovascular accident (stroke), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service connection for cerebrovascular accident (stroke). As a general matter, within one year of the date the AOJ issues a decision under AMA, which went into effect on February 19, 2019, a claimant may elect one of three review options, or lanes: (i) Higher-Level Review by the AOJ; (ii) Supplemental Claim; or (iii) appeal to the Board. 38 U.S.C. § 5104C (a) (1). If a request for review under one of these three lanes is pending final adjudication, a claimant may not file a request for review under a different lane without first withdrawing the pending review request. 38 U.S.C. § 5104 (a) (2) (A); 38 C.F.R. § 3.2500 (b), 20.205. After a claimant elects one of the three available review options, the claimant may not take another action with respect to the same claim until the Higher-Level Review, Supplemental Claim, or Notice of Disagreement appeal to the Board is adjudicated; or the elected Request for Higher-Level Review, Supplemental Claim, or Notice of Disagreement appeal to the Board is withdrawn. 38 U.S.C. § 5104C (a); 38 C.F.R. § 3.2500 (c). By way of procedural history, the Veteran submitted a VA Form 21-526 Fully Developed Claim in July 2023 claiming entitlement to service connection for cerebrovascular accident (stroke). In October 2023, the AOJ issued a rating decision denying the Veteran's claim of service connection for cerebrovascular accident (stroke). In October 2023, the Veteran submitted a VA Form 20-0996 Request for Higher-Level Review. While the Higher-Level Review request was awaiting further adjudication, the Veteran submitted a VA Form 10182 NOD in November 2023. He did not withdraw the Higher-Level Review request for entitlement to service connection for cerebrovascular accident (stroke) at any time within one year of the date the AOJ issued the October 2023 rating decision. Any request for review under a different lane during that year would be a concurrent election. In Terry v. McDonough, 37 Vet. App. 1 (2023), the United States Court of Appeals for Veterans Claims (Court) determined that concurrent elections are prohibited. More specifically, the Court held that "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." The Court's holding was expressly predicated on finding that multiple administrative review requests were "not pending concurrently" as such would be prohibited under 38 U.S.C. § 5104C (a) (2) (A). Id. In other words, the Court's holding in Terry makes it perfectly clear that only one administrative review option can be pursued at a time for any given issue or issues. Here, the Veteran filed the November 2023 VA Form 10182 requesting Board review of the October 2023 rating decision while the October 2023 Request for Higher-Level Review was still pending. Because the AOJ had not yet issued a final decision of its Higher-Level Review, and the Veteran did not withdraw the October 2023 request, the Board should not have accepted the November 2023 VA Form 10182 because it was concurrent with the VA Form 20-0996 Request for Higher-Level Review of the October 2023 rating decision. See 38 C.F.R. § 3.2500 (b); see Terry, supra. The Board notes that an Ineligible Appeal Letter was sent to the Veteran in January 2025 explaining the procedural defect. To date, the Veteran has not indicated his disagreement with the Board's plans to dismiss the appeal. As such, the Board should not have docketed the November 2023 VA Form 10182 as it resulted from an impermissible concurrent election of review for the issue of entitlement to service connection for cerebrovascular accident (stroke) in the October 2023 Request for Higher-Level Review. The Board may dismiss an appeal for a procedural defect, such as improper docketing of an appeal. See Hall v. McDonough, 34 Vet. App. 329 (2021). Due to this procedural defect, the Board will dismiss this claim at this time. 38 C.F.R. §§ 3.2500 (b); Terry, supra. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Martinezorta, Rafael 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.