Citation Nr: 0814951 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 00-12 163A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether a January 28, 1976 RO letter, denying service connection for bronchial asthma, may be reversed or amended on the basis of clear and unmistakable error. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The veteran had active service from January 1971 to December 1972. This appeal came to the Board of Veterans' Appeals (Board) from an April 2000 RO rating decision that denied an effective date earlier than August 1, 1990, for service connection for bronchial asthma. In July 2001, the Board remanded the case to the RO for additional action. A January 2003 RO rating decision determined there was no clear and unmistakable error in the January 28, 1976, RO letter, denying service connection for bronchial asthma. The veteran was notified of this determination and appealed. In June 2003, the Board determined that the criteria for granting service connection for bronchial asthma as of May 17, 1988, were met, and that the claim that the January 28, 1976, RO letter contained clear and unmistakable error in denying service connection for bronchial asthma lacked legal merit. The veteran appealed the Board's June 2003 decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2006 memorandum decision, the Court vacated the Board's June 2003 decision to the extent that it found that the January 1976 RO decision could not be challenged on the basis of clear and unmistakable error because it was impossible to determine exactly what was of record in January 1976 because the claims folder had been rebuilt. That matter was remanded for readjudication consistent with the October 2006 order. In an October 2007 statement, the veteran indicated that he no longer wished to be represented by his private representative, and instead wished to appoint Disabled American Veterans as his representative. The most recent Power of Attorney (POA) (VA Form 21-22) of record, dated in October 2007, shows Disabled American Veterans as the veteran's designated representative. FINDINGS OF FACT 1. In an October 26, 1998, decision, the Board determined that a January 28, 1976, RO letter that denied service connection for bronchial asthma was final. 2. To date, the veteran has not alleged that the October 26, 1998, Board decision contains clear and unmistakable error. CONCLUSION OF LAW The January 28, 1976, RO letter that denied service connection for bronchial asthma is not subject to a claim of clear and unmistakable error as a matter of law. 38 U.S.C.A. §§ 5109A, 7104 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board denies the veteran's claim that the January 28, 1976, RO rating action denying service connection for bronchial asthma contains clear and unmistakable error. Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. Manning v. Principi, 16 Vet. App. 534 (2002). The record shows that the veteran's original claims folder is missing and that his folder was rebuilt in approximately 1992. In the October 2006 memorandum decision, the Court, citing its decision in Marciniak v. Brown, 10 Vet. App. 198 (1997), noted that a September 1998 RO letter indicates that the veteran was notified in a RO letter dated on January 28, 1976, that service connection was denied for bronchial asthma. In an October 26, 1998, decision, the Board determined that the January 28, 1976, RO rating action was final, but that new and material evidence had been submitted to reopen the claim. In the October 26, 1998, decision the Board found that service connection was warranted for bronchial asthma. In a June 24, 2003, decision, the Board concluded that entitlement to an effective date of May 17, 1988, was warranted for the grant of service connection but that the January 28, 1976, RO rating action did not contain clear and unmistakable error. In reaching this determination, the Board explained, "[i]nasmuch as it is impossible to determine exactly what was in the record before the RO in January 1976," clear and unmistakable error could not be found to exist because a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. To date, the veteran has not alleged that the October 26, 1998, Board decision that determined that the January 28, 1976, RO rating action denying service connection for bronchial asthma was final contained clear and unmistakable error to the extent that the Board found that the January 28, 1976, rating action was final. The RO's final, unappealed January 28, 1976, RO rating action was subsumed by the October 26, 1998, Board decision that reopened and considered the merits of the veteran's claim. See Donovan v. West, 158 F.3d 1377, 1381-82 (Fed. Cir. 1998); Manning v. Principi, 16 Vet. App. 534, 540-41 (2002) (regarding delayed subsuming). Thus, as a matter of law, the January 28, 1976, rating action may not be challenged on the basis of clear and unmistakable error. Id. Further, although he is free to do so, to date the veteran has not alleged that the October 26, 1998, Board decision contained clear and unmistakable error in finding that the January 28, 1976, rating action was final. As such, the appeal must be denied. ORDER The appeal is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs