Citation Nr: 1304201 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-07 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether there was clear and unmistakable error (CUE) in the Board of Veterans' Appeals (Board) July 2009 decision, which (1) dismissed an issue seeking an increased rating for a left knee disability; (2) denied entitlement to a compensable rating for service-connected right ear hearing loss; (3) denied entitlement to an earlier effective date for the November 1, 2005 assignment of a 20 percent disability rating for service-connected left knee disability; (4) denied entitlement to service connection for depression, to include as secondary to service-connected disabilities; and (5) denied entitlement to service connection for glaucoma of the right eye. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from December 1981 to April 1991. This matter comes before the Board pursuant to a January 2010 motion for revision of a July 2009 Board decision on the grounds of clear and unmistakable error (CUE). In July 2009, the Board (1) dismissed an issue seeking an increased rating for a left knee disability; (2) denied entitlement to a compensable rating for service-connected right ear hearing loss; (3) denied entitlement to an earlier effective date for the November 1, 2005 assignment of a 20 percent disability rating for service-connected left knee disability; (4) denied entitlement to service connection for depression, to include as secondary to service-connected disabilities; and (5) denied entitlement to service connection for glaucoma of the right eye. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and also filed a motion for revision of that Board decision. However, pursuant to VA's governing regulations, the Veteran's CUE motion was stayed pending the outcome of his Court appeal. The Court subsequently issued July 2012 Memorandum Decision affirming the Board's July 2009 denial as to all issues mentioned above. As the time for reconsideration, review, or appeal of the July 2012 Memorandum Decision on the Veteran's claims has now expired, consideration of his CUE motion may proceed. 38 C.F.R. § 20.1410 (2012). Prior to addressing the merits of that motion, the Board observes that the Veteran's representative indicated in a January 2013 statement that after review of the file, "it has been determined that there is no CUE claim pending before the Board." Despite the Veteran's representative's review of the file, the Board is still required to address the Veteran's January 2010 CUE motion and come to an independent determination. It is noteworthy that neither the Veteran nor his representative has ever withdrawn his 2010 CUE motion. As an aside, the prior July 2009 Board decision also remanded four claims for further development, which are: (1) entitlement to an increased rating for service-connected lumbar spine disability, currently evaluated as 40 percent disabling, to include the issue of whether a rating in excess of 20 percent was warranted prior to November 1, 2005; (2) entitlement to an effective date earlier than November 1, 2005 for the assignment of a 40 percent disability rating for service-connected lumbar spine disability; (3) entitlement to an effective date earlier than November 1, 2005 for the assignment of a total disability rating based on individual unemployability (TDIU); and (4) entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. These issues are still being developed by the Agency of Original Jurisdiction (AOJ), have not been certified back to the Board, and are not otherwise properly before the Board at this time. As such, these issues will not be addressed herein. FINDINGS OF FACT 1. In its July 2009 decision, the Board dismissed an issue seeking an increased rating for a left knee disability, denied entitlement to a compensable rating for service-connected right ear hearing loss, denied entitlement to an earlier effective date for the November 1, 2005 assignment of a 20 percent disability rating for service-connected left knee disability, denied entitlement to service connection for depression, to include as secondary to service-connected disabilities, and denied entitlement to service connection for glaucoma of the right eye. 2. In a motion received in January 2010, the Veteran alleged CUE in the July 2009 Board decision. 3. In a July 2012 Memorandum Decision, the Court affirmed the Board's July 2009 decision as to all claims decided. CONCLUSION OF LAW The Court's affirmance of the July 2009 decision precludes the Board from reaching the merits of the Veteran's motion alleging CUE in that prior decision; therefore, his motion must be dismissed. 38 U.S.C.A. §§ 5109A, 7111 (West 2002); 38 C.F.R. § 20.1400(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In January 2010 the Veteran submitted a motion for reconsideration of a July 2009 Board decision on the basis of CUE. The Veteran had also appealed the Board's denial to the Court. Pursuant to VA's governing regulations, the Veteran's CUE motion was stayed pending the conclusion of his appeal before the Court. 38 C.F.R. § 20.1410 (2012). In July 2012, the Court issued a Memorandum Decision affirming the Board's July 2009 decision. Other issues, which were remanded within the Board's July 2009 decision, were mentioned in the July 2012 Memorandum Decision but not addressed as those issues were not properly before the Court. The Court's affirmance of the July 2009 decision precludes the Board from reaching the merits of the Veteran's motion alleging CUE in that prior decision. That is, the Court affirmed the Board's dismissal of the issue seeking an increased rating for a left knee disability, and affirmed the Board's denial of the other claims, to include entitlement to a compensable rating for service-connected right ear hearing loss, entitlement to an earlier effective date for the November 1, 2005 assignment of a 20 percent disability rating for service-connected left knee disability, entitlement to service connection for depression, to include as secondary to service-connected disabilities, and entitlement to service connection for glaucoma of the right eye. The Court's decision bars any subsequent readjudication by the Board with respect to those issues. 38 C.F.R. § 20.1400(b). Where, as here, the Court affirms a determination by the Board on a particular issue (or issues), the decision of the Board is subsumed by that of the Court. Therefore, there is no longer a Board decision that is subject to revision based on CUE. Id.; see also Disabled American Veterans v. Gober, 234 F.3d 682, 293 (Fed. Cir. 2000); May v. Nicholson, 19 Vet. App. 310 (2005). For the foregoing reasons, the Board must dismiss the Veteran's motion alleging CUE in the July 2009 Board decision, as adjudication on that motion is precluded as a matter of law. Id. ORDER The Veteran's motion alleging CUE in the Board's July 2009 decision is dismissed, with prejudice to refilling. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs