The VA’s rules prohibit filing a second decision review on the same issue while another review of that issue is still pending, but a claim for increase is a different kind of filing because it is based on a condition getting worse rather than on disagreement with a past decision. Whether filing for an increase during a pending appeal makes sense depends on what is pending, which time period each filing covers, and how the VA is likely to treat the overlap, so it is worth mapping that out before submitting anything new.
The question comes up often. A veteran appeals a rating, waits months for an answer, and in the meantime the condition gets noticeably worse. Veterans in Utah and across the country frequently wonder whether they should file again now or wait for the appeal to finish.
What Is the Difference Between an Appeal and a Claim for Increase?
Under the VA’s decision review system, there are three ways to challenge a decision: a Supplemental Claim, a Higher-Level Review, or an appeal to the Board of Veterans’ Appeals. Each of these asks the VA to look again at a decision the veteran disagrees with.
A claim for increase works differently. When the VA wrote its rules for the modernized review system, it described a claim for increase as one based on a change or worsening in a condition since a prior VA decision. It is not grounded in disagreement with that earlier decision.
That distinction matters. An appeal argues that the VA got the rating wrong at the time it decided. A claim for increase argues that the condition is worse now than it was then.
What Does the Concurrent Election Rule Prohibit?
Under 38 C.F.R. § 3.2500(b), a claimant who has filed for review of an issue under one option may not file for review under a different option while that review is pending final adjudication. The same regulation also bars administrative review of a claim while an appeal of that claim is pending in federal court.
The VA explained when it adopted the rule that having the same issue reviewed concurrently through two different processes is inefficient and raises potential conflicts.
Board decisions show the rule has real consequences:
• In one 2025 decision, a veteran filed a Supplemental Claim and a Board appeal on the same knee rating on the same day. The Board dismissed the appeal as a prohibited concurrent election.
• In a 2021 decision, the Board found that a veteran had filed a Supplemental Claim and a federal court appeal on the same issue on the same day. It concluded that later VA rating decisions on that issue were void.
These cases involved overlapping review options, not a straightforward claim for increase. Still, they show why the label and timing of any new filing deserve careful attention.
Can a Claim for Increase Be Filed While the Same Rating Is on Appeal?
This is where veterans should proceed carefully. The concurrent election rule is written in terms of review options, and a claim for increase is not one of the three review options. That suggests a claim based on genuine worsening is a different type of filing.
However, the VA’s published regulations do not clearly spell out how the VA handles a new claim for increase on a condition whose rating is already on appeal. In practice, the outcome can depend on how the filing is worded, what period each proceeding covers, and how the VA processes it.
A few practical points help reduce confusion:
• Be clear about what is being filed. A request based on worsening should say so and describe what changed, rather than repeating arguments that the earlier decision was wrong.
• Identify the new evidence. Recent treatment records, a new diagnosis, or a change in functioning tie the filing to a later period.
• Know what is already pending. Confirm which review option is pending for that condition and when it was filed.
• Keep copies and dates. A clear paper trail helps if the VA later questions whether filings overlapped.
How Can a Pending Appeal and a New Increase Claim Overlap?
Even when both are allowed, the two proceedings can cover overlapping time periods. The VA can assign different ratings for different stretches of time, often called staged ratings. A Board decision may address one period while a separate VA decision addresses a later one.
Board decisions also show that the VA sometimes grants a higher rating for a later period while an appeal is still pending. In one 2025 decision, the regional office assigned higher spine ratings effective from a later date while the case was on remand, and the Board treated that as a partial grant, with higher ratings for both periods still at issue.
Overlap can work in a veteran’s favor, but it can also make a file harder to follow. Keeping track of which decision covers which dates helps prevent gaps or duplicated effort. A simple timeline listing each filing, its date, and the period it covers can make later decision letters much easier to check.
How Do Board Dockets Handle Newer Evidence?
If the pending review is a Board appeal, the docket the veteran chose affects whether newer evidence of worsening can be considered at all:
• Direct Review docket: No new evidence and no hearing. The Board reviews the record the VA had.
• Evidence Submission docket: New evidence can be submitted within 90 days of the date the VA receives the appeal request.
• Hearing docket: A hearing before a Veterans Law Judge, with or without new evidence.
A veteran on the Direct Review docket whose condition has worsened since the decision may find that the Board cannot consider the newer records. That is one reason some veterans look at whether a separate filing or a later Supplemental Claim makes more sense.
What Options Exist Besides Filing Something New Right Away?
Depending on the situation, alternatives may include:
• Using the evidence window, if the appeal is on a docket that accepts new evidence and the window is still open
• Waiting for the decision, then filing a Supplemental Claim with the new evidence within one year of that decision, which can help preserve continuous pursuit and the effective date
• Reviewing whether the pending review still fits, since circumstances change; withdrawing a pending review has its own consequences and is a separate decision
The right choice depends on deadlines, the evidence, and the condition involved.
What Can This Look Like in Practice?
The following is a general illustration, not a prediction about any individual case.
A veteran in Utah appealed a 30% rating for a mental health condition to the Board on the Direct Review docket. Eight months later, their symptoms worsened significantly. They began missing work and started more intensive treatment.
Because the Direct Review docket does not accept new evidence, the Board will likely decide the appeal based on the earlier record. The veteran has a few paths to consider: filing a claim for increase supported by the new treatment records, clearly describing the worsening since the last decision, or waiting for the Board decision and then filing a Supplemental Claim within one year.
Each path affects which period is decided first and how effective dates may be set. Mapping that out before filing can prevent a procedural problem from delaying both proceedings.
What Questions Should Veterans Ask Before Filing?
1. What exactly is pending, and on which issue?
2. Which docket or review option was chosen, and does it accept new evidence?
3. Is the new filing based on worsening, or on disagreement with the earlier decision?
4. What period would each proceeding cover?
5. What deadlines apply to the current decision, and to any later one?
When Can a Representative Help With These Decisions?
Overlapping filings are an area where small procedural details can have outsized effects. Lawyers who handle VA appeals can review what is pending, the docket selected, and the new evidence to help identify an approach that avoids a concurrent filing problem.
Veterans weighing their options can speak with VA attorneys for veterans about whether to file now or wait. A VA accredited attorney can also explain how a later decision might affect effective dates, and a VA benefits lawyer can help organize records so each period is supported.
About Southwest Law Firm
For veterans sorting through pending appeals and rating questions, Southwest Law Firm offers representation focused entirely on VA disability benefits. The firm’s attorney, Jay Mendoza, is a Marine Corps veteran accredited by the VA and licensed in Arizona and New Mexico, and the team also includes VA-accredited agents. Their Glendale, Arizona office takes calls at (623) 259-5959, and veterans can check the office location on Google Maps.
