MIGRAINE

JOHN Z. JONES · 2026 · Case ID: A26036696

MIXED

Summary

The Veteran, who served in the United States Marine Corps from October 2007 to October 2012, appeals the denial of service connection for migraines, left and right foot disorders, and an earlier effective date for his back condition, radiculopathy, and tinnitus. The Veteran also appeals the dismissal of his claims for right ankle condition and bilateral hearing loss. The Board denied service connection for migraines, finding the evidence did not show characteristic prostrating attacks as required by Diagnostic Code 8100, despite the Veteran's lay statements and a recent neurology consultation. The Veteran failed to report for a scheduled VA examination for migraines. Service connection for TBI was granted, as the Board found the Veteran's diagnosis by a psychologist less than a year after service, coupled with his credible lay testimony about an in-service head injury, met the nexus requirement. The claims for left and right foot disorders were denied due to lack of a current diagnosis or functional impairment, despite the Veteran's credible report of foot pain. The Board denied earlier effective dates for the back condition, radiculopathy, and tinnitus, finding the Veteran failed to continuously pursue these claims after a February 2016 rating decision became final in February 2017. The appeals for the right ankle condition and bilateral hearing loss were dismissed as untimely filed, with no good cause shown for the delay.

Rationale

No characteristic prostrating attacks shown; Failed to attend VA examination; Ameliorative effects of medication discounted

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

8100

Docket No.

250730-572857

Full Decision Text

Citation Nr: A26036696
Decision Date: 04/21/26 Archive Date: 04/21/26

DOCKET NO. 250730-572857
DATE: April 21, 2026

ORDER

An initial compensable evaluation for migraine headaches is denied.

Entitlement to service connection for traumatic brain injury (TBI) is granted.

Entitlement to service connection for left foot disorder is denied.

Entitlement to service connection for right foot disorder is denied.

An effective date earlier than June 5, 2024, for the grant of service connection for degenerative disc disease, lumbar spine is denied.

An effective date earlier than June 5, 2024, for the grant of service connection for radiculopathy, right lower extremity (sciatic nerve) is denied.

An effective date earlier than June 5, 2024, for the grant of service connection for radiculopathy, right lower extremity (femoral nerve) is denied.

An effective date earlier than June 5, 2024, for the grant of service connection for radiculopathy, left lower extremity (sciatic nerve) is denied.

An effective date earlier than June 5, 2024, for the grant of service connection for radiculopathy, left lower extremity (femoral nerve) is denied.

An effective date earlier than June 5, 2024, for the grant of service connection for tinnitus is denied.

The appeal for service connection for a right ankle condition is dismissed.

The appeal for service connection for bilateral hearing loss is dismissed.

FINDINGS OF FACT

1. The probative evidence of record demonstrates that the Veteran's migraines did not manifest with characteristic prostrating attacks of migraine or non-migraine pain.

2. The probative evidence of record shows that the Veteran's claimed TBI is at least as likely as not related to military service.

3. The probative evidence of record shows that the Veteran's claimed left foot disorder is not related to military service.

4. The probative evidence of record shows that the Veteran's claimed right foot disorder is not related to military service.

5. On February 11, 2016, the VA notified the Veteran of the February 2016 rating decision denying service connection for bilateral hearing loss, tinnitus and a back condition.

6. The Veteran did not appeal the February 2016 rating decision and on February 10, 2017, it became final.

7. The Veteran filed a new claim for a back condition and tinnitus on June 5, 2024.

8. The Veteran's appeals for the issues of entitlement to service connection for right ankle condition and bilateral hearing loss were untimely filed; good cause for the delay has not been provided.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for migraines have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.655, 4.1, 4.3, 4.7, 4.10, 4.124(a), Diagnostic Code (DC) 8100.

2. The criteria for service connection for TBI have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309.

3. The criteria for service connection for right foot disorder have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.

4. . The criteria for service connection for left foot disorder have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.

5. The criteria for an effective date earlier than June 5, 2024, for the grant of service connection for degenerative disc disease, lumbar spine have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.160, 3.321, 3.400, 4.1, 4.2, 4.7
3, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.

6. The criteria for an effective date earlier than June 5, 2024, for the grant of service connection for radiculopathy, right lower extremity (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.160, 3.321, 3.400, 4.1, 4.2, 4.7.

7. The criteria for an effective date earlier than June 5, 2024, for the grant of service connection for radiculopathy, right lower extremity (femoral nerve) have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.160, 3.321, 3.400, 4.1, 4.2, 4.7.

8. The criteria for an effective date earlier than June 5, 2024, for the grant of service connection for radiculopathy, left lower extremity (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.160, 3.321, 3.400, 4.1, 4.2, 4.7.

9. The criteria for an effective date earlier than June 5, 2024, for the grant of service connection for radiculopathy, left lower extremity (femoral nerve) have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.160, 3.321, 3.400, 4.1, 4.2, 4.7.

10. The criteria for an effective date earlier than June 5, 2024, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.160, 3.321, 3.400, 4.1, 4.2, 4.7.

11. The criteria for dismissal of the appeal for service connection for a right ankle condition have been met. 38 U.S.C. §§ 7104, 7105, 7108; 38 C.F.R. §§ 3.2400, 3.2500, 19.2, 19.20, 20.201, 20.203.

12. The criteria for dismissal of the appeal for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 7104, 7105, 7108; 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from October 2007 to October 2012.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from October 2007 to October 2012.

The rating decisions on appeal were issued in March 2024, October 2024 and April 2025; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In June 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a March 2024 rating decision. During the processing of the HLR, required development was identified for the two conditions migraines and TBI, and as such, in an April 2025 rating decision the claim was adjudicated under the Supplemental Claim lane so that additional evidence could be considered in deciding the claim.

In the July 2025 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 2024 agency of original jurisdiction (AOJ) decision on appeal (for the earlier effective date for the back, lower extremities and tinnitus), the April 2025 rating decision (for the increased rating for migraines and service connection for TBI) or the March 2024 AOJ decision on appeal, which was subsequently subject to higher level review (for service connection for the feet). 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions 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.

Increased Ratings

Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1.

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995).

The Board is responsible for determining whether the evidence persuasively supports the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Migraines

The Board finds that the evidence does not show characteristic prostrating attacks of migraine or non-migraine pain. Thus, an initial compensable rating is denied.

The Veteran's migraines are rated
with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Migraines

The Board finds that the evidence does not show characteristic prostrating attacks of migraine or non-migraine pain. Thus, an initial compensable rating is denied.

The Veteran's migraines are rated according to 38 C.F.R. § 4.124(a), DC 8100. Under DC 8100, a 0 percent rating is warranted for characteristic prostrating attacks averaging less than one every two months over the last several months; a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once per month over the last several months; and a 50 percent rating is warranted for very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124(a). These rating criteria are considered successive, meaning that a Veteran cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. See Johnson v. Wilkie, 30 Vet. App. 245 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Id. at 252.

The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings to describe the nature and severity of headaches; however, it is not defined by regulation. Pursuant to Dorland's Illustrated Medical Dictionary, 94 (33rd ed. 2020), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion, powerlessness, or lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). The term "completely," as used before "prostrating" in the 50 percent criteria, means that the Veteran must be rendered entirely powerless and that "productive of severe economic inadaptability" means either producing or capable of producing severe economic inadaptability. Id. at 253. Nothing in DC 8100 requires that the claimant be completely unable to work to qualify for a 50 percent rating.

The term "very frequent" is not defined in the regulation, but looking at the rating criteria as a whole, and noting that a 10 percent rating is warranted when prostrating attacks occur one in two months over the last several months, and a 30 percent rating is warranted when prostrating attacks occur once a month over the last several months, the 50 percent rating must logically require a frequency of prostrating attacks proportionally greater than once per month. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract."

The Veteran was scheduled for a March 25, 2025, VA examination to evaluate his migraine headaches and failed to report for that examination. In the absence of a completed examination due to failure to report, the claim is rated on the evidence of record. 38 C.F.R. § 3.655(b).

The Veteran initially submitted a claim for migraines in December 2023. Service connection for migraines was granted with a non-compensable rating in a May 2024 rating decision. In June 2024, the Veteran filed an HLR for his migraines, and in a September 2024 rating decision, an earlier effective date was granted for the migraines.

The Veteran was provided with a January 2024 VA examination at which examiner B.R. diagnosed migraine including migraine variants. The Veteran reported that the headaches resulted in pain on both sides of the head with pulsing or throbbing head pain that lasted for less than a day. The Veteran did not report characteristic prostrating attacks of headache pain at the examination. B.R. did not find any functional impact from the diagnosed migraines. The Veteran reported the use of over-the-counter nonsteroidal anti-inflammatory agents (NSAIDs), but no prescribed medications.

VA Medical Center (VAMC) records do not show any visits for, treatment of, or complaints of migraine or headache pain from December 2023 to
granted for the migraines.

VA Medical Center (VAMC) records do not show any visits for, treatment of, or complaints of migraine or headache pain from December 2023 to September 2024. An October 2024 note indicated complaint of headache and referral to neurology clinic for evaluation. Another October 2024 neurology consultation showed treatment for headaches, with a report of about two or three headaches per week, about eight to ten headaches per month. The Veteran was started on sumatriptan.

Because DC 8100 does not contemplate the use of medication, the ameliorative effects of medication must be discounted. VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use," Ingram v. Collins, 38 Vet. App. 130, 132 (2025). In this case, the Veteran has not made any lay statement indicating that he experienced relief, whether complete or partial, from his use of over-the-counter NSAIDs, or his newly prescribed sumatriptan, in the frequency, intensity or duration of his headaches.

The Veteran is competent to report readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has weighed the evidence of the VA examination with the Veteran's statements about the frequency and severity of his headaches. Given the competent and credible statements, the VA examinations, and the VAMC records, the Board finds that the Veteran's headaches did not manifest with characteristic prostrating attacks of migraine or non-migraine pain.

As the record does not demonstrate that the Veteran's migraine headaches resulted in characteristic prostrating attacks of migraine or non-migraine pain, a compensable rating for migraine headaches is denied.

Service connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Section 3.303(b) provides that service connection may be established based on chronicity and continuity of symptomatology. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit held that 38 C.F.R. § 3.303(b) applies only to those conditions identified as chronic conditions in 38 C.F.R. § 3.309(a). Organic diseases of the nervous system are included in the list of chronic conditions in 38 C.F.R. § 3.309(a).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence cannot be determined to lack credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).

The Board is responsible for determining whether the evidence persuasively supports the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the
and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence cannot be determined to lack credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).

TBI

The Veteran contends that he is entitled to service connection for TBI because it is related to service. See July 2025 Notice of Disagreement.

For the reasons discussed below, the Board agrees.

The Veteran was scheduled for a March 25, 2025, VA examination and medical opinion to evaluate his TBI and failed to report for that examination. In the absence of a completed examination due to failure to report, the claim is rated on the evidence of record. 38 C.F.R. § 3.655(b).

The first element of service connection is a current disability. The specific condition of TBI requires a diagnosis by a specially trained professional. VAMC records reveal that the Veteran was screened for TBI upon return from deployment by a trained specialist. In the June 2013 VAMC record, psychologist J.B., PhD, gave the Veteran a diagnosis of TBI.

In the same record, the Veteran reported several prior TBIs and a fall on his recent deployment resulting in a loss of consciousness for more than five minutes with reported associated head trauma symptoms. The Veteran described the incident as being thrown from a vehicle and hitting the ground and remaining unconscious for four or five minutes. The Board considers the Veteran's lay statement to the examiner in the June 2013 record to be credible, and thus the second element, an in-service event, is also met.

As for the third element, a nexus between the current condition and service, this is shown by chronicity and continuity. 38 C.F.R. § 3.303(b). This rule applies only to those conditions identified as chronic conditions, but TBI is an organic disease of the nervous system and thus is included in the list of chronic conditions in 38 C.F.R. § 3.309(a). The condition was identified and diagnosed less than a year after the Veteran left military service and was clearly identified as associated with an in-service event, the head injury. Whether the TBI previously existed the in-service head injury and the in-service injury merely aggravated it, or whether the TBI was caused by the in-service head injury, it is at least as likely as not that there is a nexus.

As such, the three elements required for service connection are met, and the Board grants entitlement to service connection for TBI.

Left foot disorder

Right foot disorder

The Veteran contends that he is entitled to service connection for bilateral foot disorders because they are related to service. See July 2025 Notice of Disagreement.

The first element of service connection is a current disability. Disability evaluations are based on functional impairment and the loss of earning capacity caused by that impairment. Saunders v. Wilkie, 886 F.3d 1356, 1362-63 (2018). A diagnosis by a medical provider can show a current disability, but symptoms of an undiagnosed condition that cause functional impairment can also show a disability. Id. at 1364 (pain is an impairment insofar as it "it diminishes the body's ability to function" and results in an impairment in earning capacity.)

In this case although the Veteran reported bilateral foot pain, and the Board finds the Veteran's report of foot pain credible, there is no indication in the record of a foot diagnosis through the end of the evidentiary review period (through March 2024). A September 2020 VAMC post-service report of injury including a symptom of right foot pain was associated with a right ankle tear of the anterior talofibular ligament rather than any kind of foot condition. And because the Veteran did not indicate in a lay statement any functional impairment caused by the foot pain and there is no other evidence
(pain is an impairment insofar as it "it diminishes the body's ability to function" and results in an impairment in earning capacity.)

In this case although the Veteran reported bilateral foot pain, and the Board finds the Veteran's report of foot pain credible, there is no indication in the record of a foot diagnosis through the end of the evidentiary review period (through March 2024). A September 2020 VAMC post-service report of injury including a symptom of right foot pain was associated with a right ankle tear of the anterior talofibular ligament rather than any kind of foot condition. And because the Veteran did not indicate in a lay statement any functional impairment caused by the foot pain and there is no other evidence of record to show that the foot pain caused a functional impairment, the Board concludes that there is no current disability for either foot.

Thus, the claim for entitlement to service connection for right foot disorder and left foot disorder is denied.

Effective Date

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.

As for the "date entitlement arose," there is no regulatory definition of the phrase. However, in Wright v. Gober, 10 Vet. App. 343 (1997), the phrase "date entitlement arose" was found to be similar to the phrase "facts found". The phrase "facts found" includes the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation." DeLisio v. Shinseki, 25 Vet. App. 45, 51 (2011). These cases, along with the regulatory context, strongly suggest that the "date entitlement arose" is the date on which the facts in the case demonstrate that the entitling criteria are first met.

A claim for an effective date is not a freestanding claim, it is part of the underlying claim for increase or service connection. See Calhoun v. McDonough, 37 Vet. App. 96 (2024); Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006).

When a claim is denied and the claimant fails to file a timely appeal, the decision becomes final. Dolan v. Brown, 9 Vet. App. 358, 361 (1996).

Under the AMA, the effective date for a continuously pursued claim shall be the date of receipt of the initial claim or date entitlement arose, whichever is later, if the claimant continuously pursued the issue by timely filing any of the available review options. 38 C.F.R. § 3.2500(c) and (h).

Tinnitus

Degenerative disc disease, lumbar spine

Bilateral lower extremity radiculopathy (femoral and sciatic)

The Veteran asserts entitlement to an earlier effective date for tinnitus, his back condition, and the four lower extremity nerve conditions secondary to his back. See July 2025 Notice of Disagreement.

First, the Board addresses whether there was continuous pursuit. Starting from the decision that is on appeal and working backwards, the October 2024 rating decision was of a June 2024 supplemental claim, which was a challenge of a February 2016 rating decision. There is a substantial gap before June 5, 2024, breaking continuous pursuit.

Second, the Board addresses the finality of the prior February 2016 decision. When a claim is denied and the claimant fails to file a timely appeal, the decision becomes final. Dolan v. Brown, 9 Vet. App. 358, 361 (1996). The Veteran did not appeal the rating decision for the issues of entitlement to service connection for tinnitus, a back condition, or related lower extremity radiculopathy, within one year of notice. Although the Veteran filed a May 2016 Notice of Disagreement, it was for an unrelated issue. The Veteran was notified on February 11, 2016, and the rating decision became final one year later on February 10, 2017.

In conclusion, the Board finds that the evidence of record persuasively weighs that the earliest effective date is June 5, 2024, the date of claim. As the evidence of record persuasively weighs against an effective date prior to June 5, 2024, 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, 781-82 (Fed. Cir
was notified on February 11, 2016, and the rating decision became final one year later on February 10, 2017.

Appeals to the Board

The Board shall not entertain an application for review on appeal unless it conforms to the law. See 38 U.S.C. § 7108. Under the AMA framework, an appeal consists of a properly completed VA Form 10182 submitted to the Board within one year from the date that the agency mails the notice of decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.110, 19.52. Under the legacy system, an appeal is initiated by filing a Notice of Disagreement within one year from the date that the agency mails notice of the determination and then must be perfected by the timely filing of a Substantive Appeal (VA Form 9) after the AOJ issues the Statement of the Case. 38 C.F.R. § 19.21, 19.22, 19.52(a). To reopen an issue after it has become closed, requires new and material evidence.

The AMA applies to all claims for which VA issues a notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2.

A claimant may request an extension of the period for filing an appeal for good cause. A request for such an extension must be in writing and must be filed with the Board. Whether good cause for an extension has been established will be determined by the Board. 38 C.F.R. § 20.203.

Right Ankle

For the right ankle condition, the rating decision on appeal was issued in November 2020. Therefore, this appeal is considered under the AMA framework.

The AMA requires an appeal to be filed within one year of the date of notification of the decision. The Veteran was notified of the November 2020 rating decision on November 24, 2020. The one-year period to respond extended from November 25, 2020, to November 24, 2021. The Veteran submitted a VA Form 10182 on July 30, 2025, after the expiration of the one-year appeal period.

There is no rating decision regarding the right ankle condition within one year of the December 2025 Notice of Disagreement. Under these circumstances, the Board finds as facts in this case that this appeal was not timely filed, and that the Veteran failed to request an extension of the period for filing an appeal. The Board also finds that the Board did not waive it's right to enforce the filing deadline. Accordingly, the appeal for service connection for the right ankle condition is dismissed.

Bilateral hearing loss

Regarding the appeal for entitlement to service connection for bilateral hearing loss, because the rating decision was issued in February 2016, the legacy rules apply. The Veteran had one year after the February 11, 2016, notice of the decision to file a Notice of Disagreement. The Veteran failed to file a timely Notice of Disagreement, and the February 2016 rating decision became final. The Veteran has not presented new and material evidence to reopen the claim.

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Under these circumstances, the Board finds as facts in this case that this appeal was not timely filed, that the Veteran failed to request an extension of the period for filing an appeal, and that new and material evidence has not been presented to warrant reopening the final decision. The Board also finds that the Board did not waive it's right to enforce the filing deadline. Accordingly, the appeal for entitlement to service connection for the bilateral hearing loss is dismissed.

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Schneider, Joan K.

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.

the final decision. The Board also finds that the Board did not waive it's right to enforce the filing deadline. Accordingly, the appeal for entitlement to service connection for the bilateral hearing loss is dismissed.

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Schneider, Joan K.

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