Citation Nr: A25041277 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240826-468511 DATE: May 6, 2025 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance is dismissed. FINDING OF FACT The August 2024 VA Form 10182, Notice of Disagreement, seeking service connection for SMC was an impermissible concurrent election and was docketed at the Board in error. CONCLUSION OF LAW The appeal of entitlement to service connection for SMC based on aid and attendance is dismissed. 38 U.S.C. §§ 5104C, 7105, 7108; 38 C.F.R. §§ 3.2400, 3.2500, 20.201, 20.202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to October 1988, February 1990 to April 1998, January 2003 to January 2004, and from January 2005 to May 2005. This appeal is being processed under the modernized review system, commonly referred to as the "AMA," as established by the Veterans Appeals Improvement and Modernization Act of 2017. 115 Pub. L. No. 55, 131 Stat. 1105. This matter comes before the Board of Veterans' Appeals (Board) from an April 19, 2024, rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the April 19, 2024, rating decision on appeal stemmed from a March 27, 2024, VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), seeking review of a March 19, 2024, rating decision issued in response to a January 12, 2024, VA Form 20-0995 Supplemental Claim Application. On August 26, 2024, the Veteran submitted a VA Form 10182, Notice of Disagreement, electing direct review of the evidence by a Veterans Law Judge (VLJ). Therefore, the Board may only consider the evidence of record at the time of the March 19, 2024, rating decision on appeal. 38 C.F.R. § 20.301. The Board cannot consider evidence submitted during the period after the AOJ issued the decision on appeal. Id. The period to submit evidence has now closed. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims on appeal, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to SMC based on aid and attendance. The appeal for entitlement to service connection for SMC based on aid and attendance must be dismissed because it results from a prohibited concurrent election under the AMA modernized review system. As background, on April 11, 2023, the RO issued a rating decision denying SMC based on aid and attendance. In response, the Veteran filed a Notice of Disagreement on May 3, 2023, and elected to have a hearing before a Veterans Law Judge (VLJ) under Docket No. 230503-343552. On October 28, 2024, the Veteran testified before the undersigned VLJ; the transcript of the hearing is associated with the record. When a claim is denied under the AMA, a claimant may either elect to submit a Supplemental Claim, Higher-Level Review, or submit an appeal to the Board by filing a Notice of Disagreement. A claimant cannot elect multiple review options simultaneously for the same claim. See 38 C.F.R. §§ 3.2500, 3.2501. Such concurrent election is specifically prohibited by 38 C.F.R. § 3.2500(b), which states, "[A] claimant who has filed for review under one of the options available under paragraph (a) of this section may not, while that review is pending final adjudication, file for review under a different available option." Here, the instant appeal stemming from the August 26, 2024, VA Form 10182, Notice of Disagreement, with respect to entitlement to SMC based on aid and attendance was erroneously docketed by the Board. While the May 3, 2023, Notice of Disagreement was pending, the Veteran attempted to file separate review of service connection for SMC based on aid and attendance, which led to the April 19, 2024, rating decision on appeal. The Veteran had not attempted to withdraw his prior request, and the appeal had not been resolved before the August 26, 2024, Notice of Disagreement was received. As the present appeal for SMC based on aid and attendance is a concurrent election prohibited under controlling law and regulation, the appeal as to this claim must be dismissed. The Veteran's claim for SMC based on aid and attendance will be adjudicated in a separate Board decision under Docket No. 230503-343552 in connection with the May 3, 2023, Notice of Disagreement. The Board finds that the Veteran is not prejudiced by dismissal of the claim herein. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cress, 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.