Citation Nr: 0811962	
Decision Date: 04/10/08    Archive Date: 04/23/08

DOCKET NO.  08-00 840	)	DATE
	)
	)


THE ISSUE

Whether a February 2003 decision of the Board of Veterans' 
Appeals (Board) that denied the veteran's claim seeking a 
higher rating for special monthly compensation (SMC) at the 
"o-rate," based on the loss of use of both hands under the 
provisions of 38 U.S.C.A. §1114(m), contains clear and 
unmistakable error (CUE). 


ATTORNEY FOR THE BOARD

S. B. Mays, Associate Counsel 


INTRODUCTION

The veteran served on active duty from February 1971 to 
December 1980.

This matter is before the Board as an original action on the 
motion of the veteran in which he alleges CUE in a February 
5, 2003, Board decision that denied his claim a higher rating 
for SMC at the "o-rate," based on the loss of use of both 
hands under the provisions of 38 U.S.C.A. §1114(m).  

FINDING OF FACT

In April 2006, the United States Court of Appeals for 
Veterans Claims (Court) vacated the Board's February 5, 2003, 
decision and remanded it for readjudication consistent with 
the Court's March 2006 memorandum decision; that appeal 
remains pending before the Board.


CONCLUSION OF LAW

In the absence of a final decision, the Board has no 
jurisdiction to adjudicate the merits of the motion for 
revision of a February 2003 Board decision based on CUE.  38 
U.S.C.A. § 7111 (West 2002 & Supp. 2007); 38 C.F.R. §20.1400 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Board decisions are generally subject to revision on the 
basis of CUE.  A CUE claim, however, cannot lie as to a Board 
decision that is still open to direct review.  See Gates v. 
Nicholson, 19 Vet. App. 376 (2005).  In this case, the Court 
has vacated and remanded the Board's February 5, 2003, 
decision that denied entitlement to a higher rating for SMC 
at the "o-rate," based on the loss of use of both hands 
under the provisions of 38 U.S.C.A. §1114(m).  Thus, there is 
no final decision for the Board to review on the basis of 
CUE.  Accordingly, the Board does not have jurisdiction to 
adjudicate the merits of the motion and it is dismissed.


ORDER

The motion is dismissed.

                       
____________________________________________
	STEVEN D. REISS
	Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs