Citation Nr: A25035509 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240607-465766 DATE: April 17, 2025 ORDER The higher-level review request regarding claims for entitlement to a total disability rating based on individual unemployability (TDIU), entitlement to service connection for migraines, vertigo, anxiety, depression, and somatic symptoms, and entitlement to increased evaluations for adjustment disorder, tinnitus, and right ear hearing loss was not timely; the appeal is denied. FINDINGS OF FACT 1. A March 21, 2022, decision of the agency of original jurisdiction (AOJ) denied claims for TDIU, entitlement to service connection for migraines, vertigo, anxiety, depression, and somatic symptoms, and increased evaluations for adjustment disorder, tinnitus, and right ear hearing loss. 2. On March 31, 2023, the Veteran attempted to file a request for higher-level review regarding his claims for TDIU, entitlement to service connection for migraines, vertigo, anxiety, depression, and somatic symptoms, and increased evaluations for adjustment disorder, tinnitus, and right ear hearing loss. 3. The Veteran's untimely higher-level review request does not conform to the claims processing rules. CONCLUSION OF LAW The March 2023 request for higher-level review was not timely filed. 38 U.S.C. §§ 5104B, 5104C; 38 C.F.R. §§ 3.2500, 3.2601. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Army from May 2004 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2023 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In June 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an April 2023 decision. In June 2023, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior April 2023 decision. Therefore, the Board may only consider the evidence of record at the time of the April 2023 decision, and any evidence submitted during an applicable evidentiary window. In the June 2024 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 April 2023 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 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. Timeliness of the higher-level review request. The Board finds that the Veteran's March 31, 2023 request for higher-level review of the March 21, 2022 rating decision that denied TDIU, entitlement to service connection for migraines, vertigo, anxiety, depression, and somatic symptoms, and increased evaluations for adjustment disorder, tinnitus, and right ear hearing loss, was not timely filed. In any case in which the Secretary of VA renders a decision on a claim, the claimant may take one of several actions on or before the date that is one year after the date on which the AOJ issues a decision with respect to that claim. 38 U.S.C. § 5104C(a)(1); 38 C.F.R. § 3.2500(a)(1). Such actions include filing a request for higher-level review. § 5104C(a)(1)(A); see 38 U.S.C. § 5104B; 38 C.F.R. § 3.2601. A request for higher-level review must be made within one year of the notice of the AOJ decision. 38 U.S.C. § 5104B(b)(1)(B); 38 C.F.R. §§ 3.2500(a)(1). VA regulation provides that a complete request for higher-level review must be received by VA within one year of the date of VA's issuance of the notice of the decision. 38 C.F.R. § 3.2601(d). A March 2022 AOJ decision denied claims for TDIU, entitlement to service connection for migraines, vertigo, anxiety, depression, and somatic symptoms, and increased evaluations for adjustment disorder, tinnitus, and right ear hearing loss. The Veteran and his representative at the time, the National Association of County Veterans Service Officer, were notified of the decision and his appellate rights in a March 21, 2022 letter. The Veteran did not submit an appeal or request for review within a year of this AOJ decision. On March 14, 2023, the Veteran submitted a new power of attorney, appointing Robert V. Chisholm as his new representative. The attorney submitted a generalized letter asking VA to toll any filing deadlines for a period of 90 days from the date of the letter. Such request was not granted. The Veteran filed a request for higher-level review (VA Form 20-0996) that was received on March 31, 2023 for his claims for TDIU, entitlement to service connection for migraines, vertigo, anxiety, depression, and somatic symptoms, and increased evaluations for adjustment disorder, tinnitus, and right ear hearing loss from the March 21, 2022 rating decision. The attorney acknowledged that the higher-level review request was untimely, arguing that he was retained on March 14, 2023 and was unaware of the March 21, 2022 rating decision prior to obtaining access to VBMS on March 24, 2023. Unfortunately, as the Veteran's March 31, 2023 request for higher-level review was received by VA more than one year after the date of notice of the March 21, 2022 decision, it was not timely filed. See 38 U.S.C. §§ 5104 (b)(1)(B), 5104C(a)(1); 38 C.F.R. §§ 3.2500 (a)(1), 3.2601(d). Additionally, the Board finds that good cause has not been shown to extend the time to file the request for higher-level review in this case. Under 38 C.F.R. § 3.109(b), when an extension is requested after expiration of a time limit, good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Although the Veteran's attorney argued that he was unaware of the March 21, 2022 rating decision prior to obtaining access to VBMS on March 24, 2023, the Veteran and his former representative received timely notice of the March 21, 2022 rating decision; there is no evidence, and the Veteran's attorney has not argued, that the Veteran or his former representative failed to receive notice of the decision. The Veteran's claims file does not reflect that the decision was returned as undeliverable to either the Veteran or his then representative. The Veteran has also not identified a reason why he could not have filed a request for higher-level review prior to hiring his current attorney. The case of Hall v. McDonough, 34 Vet. App. 329 (2021), involving a late-filed notice of disagreement, held the "timeliness provision regarding substantive appeals is not jurisdictional in nature and serves as a claims-processing mechanism." Neither the Veteran nor his POA have reported any circumstances relating to the delayed filing of the Veteran's higher-level review request for which consideration of equitable tolling provisions may be warranted. Indeed, prior to the filing of the VA Form 21-22 appointing the current attorney as the Veteran's POA, the Veteran was able to submit a supplemental claim for entitlement to a TDIU in July 2022 and another claim for disability benefits in November 2022 (TDIU). However, he did not request a higher-level review within the one year period following the March 21, 2022 rating decision. Based on the foregoing, absent good cause and/or circumstances warranting equitable tolling, the Veteran's March 2024 higher-level review is untimely under VA claims processing rules as it relates to the claims for TDIU, entitlement to service connection for migraines, vertigo, anxiety, depression, and somatic symptoms, and entitlement to increased evaluations for adjustment disorder, tinnitus, and right ear hearing loss. Accordingly, the appeal must be denied. As the evidence of record persuasively weighs against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Feistritzer, 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.