Citation Nr: 0812894	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  05-21 392	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Whether clear and unmistakable error (CUE) was made in the 
January 27, 1983 rating decision which reduced the veteran's 
rating for thromboangiitis obliterans from 60 percent to 40 
percent and discontinued his total disability rating based on 
individual unemployability (TDIU). 


REPRESENTATION

Veteran represented by:	Puerto Rico Public Advocate 
for Veterans Affairs


ATTORNEY FOR THE BOARD

Matthew W. Blackwelder, Associate Counsel



INTRODUCTION

The veteran had active military service from July 1942 to 
March 1946 and from January 1951 to July 1953.

This appeal comes to the Board of Veterans' Appeals (Board) 
from a November 2004 rating decision.  As explained below, 
the Board is dismissing this appeal since the rating action 
in which it is alleged there was CUE was subsumed by a later 
Board decision.  Since CUE has not been alleged in the Board 
decision that subsumed the RO decision, no opinion as to that 
question is expressed.  That would only be an appropriate 
topic should a motion to revise the Board's decision be 
received. 


FINDINGS OF FACT

1.  The veteran appealed the January 1983 RO rating decision 
to the Board, and the Board issued a decision denying the 
veteran's appeal.

2.  The Board's decision of July1985 subsumed the earlier 
January 1983 RO rating decision.


CONCLUSION OF LAW

As the Board's decision of July 1985 subsumed the earlier 
January 1983 RO rating decision, that rating decision itself 
is not subject to challenge on the basis of CUE.  38 C.F.R. § 
7104(a) (West 2002); 38 C.F.R. § 20.1104 (2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran asserts that a clear and unmistakable error was 
made by the RO in its January 27, 1983 rating decision which 
reduced the veteran's rating for thromboangiitis obliterans 
from 60 percent to 40 percent and discontinued his TDIU 
rating.  

In Brown v. West, 203 F.3d 1378, 1380-81 (2000), the Court of 
Appeals for the Federal Circuit explained that under the 
regulatory scheme governing veterans' claims, a final 
decision denying benefits can be revised if it is shown to be 
the product of clear and unmistakable error; however, a 
"clear and unmistakable error" challenge to an RO 
determination may not be raised before the RO if the Board 
has sustained the RO determination on the same issue.  See 38 
U.S.C. § 5109A(a),  7104(b) (absent new and material 
evidence, "when a claim is disallowed by the Board, the 
claim may not thereafter be reopened and allowed and a claim 
based upon the same factual basis may not be considered"); 
38 C.F.R. § 3.105(a).  The rationale for that rule is that it 
is improper for a lower tribunal (the RO) to review the 
decision of a higher tribunal (the Board of Veterans' 
Appeals).  See Smith v. Brown, 35 F.3d 1516, 1526 
(Fed.Cir.1994).  Thus, when a veteran timely appeals an RO 
determination to the Board, and the Board affirms that 
determination, the RO determination is regarded as subsumed 
by the Board's decision.  See 38 C.F.R. § 20.1104.  Once a 
rating decision has been subsumed the veteran may no longer 
challenge the rating decision, but must instead challenge 
that CUE was made in the Board decision.

In this case, the veteran was notified of the January 1983 
rating decision by a letter in February 1983, and he promptly 
filed a notice of disagreement that month.  A statement of 
the case was issued in April 1983, and the veteran perfected 
an appeal to the Board by filing a substantive appeal in May 
1983.  In July 1985, the Board issued a decision affirming 
the RO's action, and denied the veteran's appeal.   

As such, the January 1983 RO rating decision was subsumed by 
the July 1985 Board decision, and may not be collaterally 
attacked in a CUE claim.  See Smith v. Brown, 35 F.3d 1516 
(Fed. Cir. 1994).  Therefore, the veteran's appeal of the 
claim of CUE is dismissed without prejudice.  Simmons v. 
Principi, 17 Vet. App. 104 (2003) (CUE claims which are 
denied based on the absence of legal merit or lack of 
entitlement under the law should be dismissed without 
prejudice).  


ORDER

The appeal as to the matter to reverse or revise the RO's 
January 27, 1983 rating decision on the basis of CUE is 
dismissed without prejudice.


____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs