Citation Nr: A25035668 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 230406-336977 DATE: April 17, 2025 ORDER The appeal is dismissed. FINDING OF FACT The April 6, 2023 Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) (VA Form 10182) of a March 2023 rating decision that awarded service connection for left knee tendonitis and patellofemoral pain syndrome, a right eyebrow scar, recurrent acute pharyngitis, and chronic suppurative otitis media and eustachian tube dysfunction reflects a failure to follow VA's claims processing rules and there is no request or basis for waiver of the relevant claims processing rules. CONCLUSION OF LAW The criteria for dismissal of an appeal have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2500, 20.202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2006 to September 2014, October 2018 to September 2020, and January 2021 to July 2022, which includes service in the Southwest Asia theater of operations. He had additional service with the Air National Guard. These matters come before the Board of Veterans' Appeals (Board) from a March 2023 rating decision. In that decision, the agency of original jurisdiction (AOJ) made the following determinations: awarded service connection for left knee tendinitis and patellofemoral pain syndrome and assigned an initial 10 percent disability rating, from September 30, 2014; awarded service connection for a right eyebrow scar and assigned an initial noncompensable disability rating, from January 17, 2017; awarded service connection for recurrent acute pharyngitis and assigned an initial noncompensable disability rating, from June 21, 2018; and awarded service connection for chronic suppurative otitis media and eustachian tube dysfunction and assigned an initial noncompensable disability rating, from July 20, 2018. In an April 6, 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran appealed the March 2023 decision, with respect to the effective dates and initial ratings assigned for left knee tendinitis and patellofemoral pain syndrome, a right eyebrow scar, recurrent acute pharyngitis, and chronic suppurative otitis media and eustachian tube dysfunction. The Veteran elected the Board's Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2023 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 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. As a final preliminary matter, in addition to the left knee, right eyebrow scar, pharyngitis, and chronic suppurative otitis media and eustachian tube dysfunction issues adjudicated in the March 2023 rating decision, the Veteran listed numerous other issues on his April 6, 2023 VA Form 10182. These issues have already been addressed in separate Board decisions dated in January 2025 and March 2025. Dismissal of Appeal The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105 (d). As a general matter, within one year of the date that the AOJ issues a decision under the Appeals Modernization Act (AMA) modernized review system, which went into effect on February 19, 2019, a claimant may elect one of three review options: (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 options is pending final adjudication, a claimant may not file a request for review under a different option 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 appeal to the Board is adjudicated; or the elected request for Higher-Level Review, Supplemental Claim, or appeal to the Board is withdrawn. 38 U.S.C. § 5104C (a); 38 C.F.R. § 3.2500 (c). In this case, a VA Form 10182 was received by VA on April 6, 2023, on which the Veteran requested direct review of the evidence considered by the AOJ. The issues that he listed as being appealed include the effective dates and initial ratings assigned for left knee tendonitis and patellofemoral pain syndrome, a right eyebrow scar, recurrent acute pharyngitis, and chronic suppurative otitis media and eustachian tube dysfunction in the March 2023 rating decision. However, the Veteran also submitted a VA Form 20-0996 (Decision Review Request: Higher-Level Review) on April 6, 2023, on which he identified the same issues listed on the April 6, 2023 VA Form 10182 (including the effective dates and initial ratings assigned for left knee tendonitis and patellofemoral pain syndrome, a right eyebrow scar, recurrent acute pharyngitis, and chronic suppurative otitis media and eustachian tube dysfunction). In January 2025, the Board sent a letter to the Veteran in which it acknowledged receipt of his April 6, 2023 VA Form 10182, but noted that he had also submitted a request for Higher-Level Review for the same issues identified on his Form 10182. The Board explained to the Veteran that he could only seek review of these issues in one review lane at a time and that in order for the Board to process his request, he needed to clarify whether he wanted to proceed with the Board review option with respect to these issues. He was advised that if he wished to proceed with a Board appeal, he was to submit a new VA Form 10182 to the Board within 60 days of the date of the January 2025 letter. The Veteran was also notified that if a new VA Form 10182 was not received within the 60 day time period, his appeal would be dismissed. Also, if he wanted to proceed in the Higher-Level Review lane, he was encouraged to directly contact the VA office that issued the decision he wanted to be reviewed. The January 2025 letter was sent to the Veteran's address of record and was not returned as undeliverable. A copy of the letter was also sent to his representative. As of this date, the Veteran has not specifically responded to the January 2025 letter. He has submitted numerous VA Form 10182s since the Board sent him the January 2025 letter, but some of these forms do not include the issues adjudicated in the March 2023 rating decision. The Veteran did submit VA Form 10182s in January, February, and March 2025 which reference the left knee, right eyebrow scar, pharyngitis, and/or otitis media/eustachian tube dysfunction issues. However, none of these Form 10182s identify the March 2023 rating decision. Rather, the Veteran identified rating decisions dated in November 2023 and February 2025, in which the AOJ readjudicated the ratings assigned for left knee tendonitis and patellofemoral pain syndrome, a right eyebrow scar, recurrent acute pharyngitis, and chronic suppurative otitis media and eustachian tube dysfunction. The Veteran has separately appealed the November 2023 rating decision, and this appeal will be the subject of a future Board decision. Overall, as the Board has not received a response to its January 2025 request for clarification as to whether the Veteran desires Board review of the issues listed on his April 6, 2023 Form 10182, for which he has made multiple review elections, he has failed to follow the claims processing rules, and there is no evidence or argument for waiver of the relevant claims processing rules, to include via 38 C.F.R. § 3.109(b). Cf. Ferko v. McDonough, 37 Vet. App. 262, 271 (2024) (38 C.F.R. § 3.109(b) "sets forth a well-established regulatory standard for seeking acceptance of an untimely NOD"). Therefore, pursuant to the applicable statute, the Board will dismiss the appeal. 38 U.S.C. § 7105 (d); Hall v. McDonough, 34 Vet. App. 329 (2021) (while the Board has jurisdiction to hear an appeal that is not in conformity with the relevant claims processing rules, it may dismiss nonconforming filings in appropriate circumstances if it explains its reasons for doing so); Dunham v. McDonough, No. 23-3014, 2024 U.S. App. Vet Claims LEXIS 418 (Mar. 26, 2024) (mem dec) (Falvey, J.) ("We have held that the Board can enforce the requirements for an NOD, but that "[i]f it dismisses [a veteran's] claim, the Board should identify the governing law, any formal defects in the appeal, whether waiver or forfeiture is a relevant consideration, and any other relevant factors") (citing Hall, 34 Vet. App. at 334); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.