Citation Nr: 1328183	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO.  12-12 370	)	DATE
	)
	)
On appeal from the 
Department of Veterans Affairs Regional Office in Manila
The Republic of the Phillipines

THE ISSUE

Whether there is clear and unmistakable error in March 16, 2004, and September 2, 2011, Board of Veterans' Appeals decisions.



REPRESENTATION

Moving party represented by:  The American Legion



ATTORNEY FOR THE BOARD

K. Millikan, Counsel



INTRODUCTION

The moving party's deceased father had recognized military service, including the recognized guerrillas, in the Philippine Commonwealth Army in the service of the United States during World War II from February 1945 to September 1945. 


FINDINGS OF FACT

1.  In a June 2005 decision, the Court of Appeals for Veterans Claims (Court) affirmed a March 16, 2004, Board decision that denied entitlement to accrued benefits and Dependency and Indemnity Compensation (DIC) benefits.  

2.  In a March 2013 decision, the Court affirmed a September 2, 2011, Board decision that found the moving party had not filed a proper claim of clear and unmistakable error in the March 16, 2004 Board decision.  


CONCLUSIONS OF LAW

1.  The March 16, 2004, Board decision is not subject to a claim for revision based on clear and unmistakable error (CUE).  38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400(b) (2012).

2.  The September 2, 201, Board decision is not subject to a claim for revision based on CUE.  38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400(b) (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  However, VA's notification and assistance duties are not applicable to claims of CUE in prior Board decisions.  38 C.F.R. § 20.1411(c), (d) (2012); Livesay v. Principi, 15 Vet. App. 165 (2001).  Accordingly, no further action or assessment is necessary prior to adjudication of this claim.

The moving party has alleged CUE in March 2004 and September 2011 Board decisions.  The March 2004 decision denied entitlement to DIC benefits and for accrued benefits.  The September 2011 decision determined that the moving party had not filed a proper claim for CUE in the 2004 Board decision.  The moving party's assertions of CUE are summarized as follows:  1) CUE in determining the Veteran's service dates and thus the moving party is entitled to benefits under the Missing Persons Act; 2) CUE in the denial of service connection for the cause of the Veteran's death because there is evidence of a heart condition shortly after service discharge; 3) CUE based on the erroneous application of laws and regulations; and 4) CUE in the denial of benefits because the moving party is the proper child of the Veteran and the surviving spouse, and he is due benefits despite any regulations to the contrary.  

A decision issued by the Board is final, unless appealed.  38 U.S.C.A. § 7103, (West 2002); 38 C.F.R. § 20.1100 (2012).  However, a final Board decision may be revised or reversed on the grounds of CUE.  38 U.S.C.A. § 7111(a) (West 2002).  All final Board decisions are subject to revision on the basis of clear and unmistakable error except decisions on issues which have been appealed to and decided by a court of competent jurisdiction.  38 C.F.R. § 20.1400(b) (2012).  "This rule prevents the Board from reviewing a previous Board decision on an issue for CUE when the previous issue has been appealed to, or decided by, a court of competent jurisdiction, such as the Court of Appeals for Veterans Claims, and that reviewing court has decided the issue the claimant seeks to review for CUE."  Disabled American Veterans v. Gober, 234 F.3d 682, 693 (Fed. Cir. 2000).  The Court's opinion on an issue replaces the Board decision on that issue, and thus there is no Board decision available for revision.  Winsett v. Principi, 341 F.3d 1329, 1331-1332 (Fed. Cir. 2003).  This rule is intended to prohibit the "inappropriate" result of an inferior tribunal reviewing the actions of a superior tribunal.  Board of Veterans' Appeals:  Rules of Practice - Revision of Decisions on Grounds of Clear and Unmistakable Error, 64 Fed. Reg. 2134-01, 2135 (Jan. 13, 1999).

As relevant, a child of a Veteran may receive DIC and/or accrued benefits where certain other requirements are met, including that an accrued benefit claim is filed within one year of the Veteran's death.  38 U.S.C.A. §§ 1310(a), 5121(a) (West 2002).  For purposes of such claims, a "child" is a legitimate child, an unmarried person, and (1) is under the age of 18, or (2) became permanently incapable of self-support prior to age 18, or (3) is over the age of 18 but is not yet 23 and is pursuing a course of instruction at an approved educational institution.  38 U.S.C.A. § 101(4)(A) (West 2002).

Also as relevant, motion for revision of a decision based on CUE must meet several requirements, including setting forth clearly and specifically the alleged CUE in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.  Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence.  38 C.F.R. § 20.1404(a), (b) (2012).  

The procedural history of the claim at issue begins with the Veteran's death in November 1995.  The surviving spouse and the moving party filed claims for DIC and accrued benefits in 2000 and 2001.  The Veteran's surviving spouse died in April 2001.  The moving party based his claim for burial, accrued, and DIC benefits on his status as a child of the Veteran and the surviving spouse.  As part of his claim, he submitted documentation that his birth date is in April 1957 and that he was married in July 1978.  He also asserted entitlement to DIC benefits due to the Veteran's death from a heart condition and a diagnosis of partial heart block shortly after service discharge.  Finally, he requested benefits and back pay under the Missing Persons Act due to erroneous service dates.  

In a July 2001 rating decision, the RO denied the moving party's claim for a burial allowance based on the surviving spouse's death, as there were no accrued benefits due to A.S.  The RO later issued a July 2002 rating decision denying entitlement to DIC benefits, including service connection for the cause of the Veteran's death, and entitlement to accrued benefits.  The moving party appealed.

In a March 2004 decision, the Board denied entitlement to DIC and accrued benefits.  The Board found the following facts:  the Veteran died in November 1995 without any pending claims; the surviving spouse and the moving party filed accrued benefits claims in 2000 and 2001, more than one year after the Veteran's death; the moving party was over the age of 18 because he was born in 1957 and had married in 1978; and the evidence did not indicate the moving party was permanently incapable of self-support prior to turning 18.  Thus, the Board determined that there was a lack of basic eligibility for both claims because the moving party was not a "child" of the Veteran for VA purposes, there was no pending claim at the Veteran's death, and the accrued benefits claims were filed more than one year after the Veteran's death.  The moving party appealed the Board's March 2004 decision.

In June 2005, the Court affirmed the Board's March 2004 decision finding that the moving party was not entitled to benefits because he was not a child for VA purposes.  The moving party filed a motion for panel reconsideration, which the Court denied in August 2005.  He did not appeal that decision, and mandate was issued in December 2005.  The moving party requested reconsideration of the March 2004 decision, which the Board denied in May 2006.  In April 2009, the Court denied the moving party's claim for a writ of mandamus based on an assertion of CUE in the March 2004 Board decision.  

In January 2011, the moving party filed another motion for revision of the March 2004 Board decision based on CUE.  In a September 2011 decision, the Board appeared to determine that the March 2004 decision did not contain CUE.  However, in a concluding paragraph, the Board stated that "the moving party has not alleged any specific error by the Board that would have manifestly changed the outcome of the appeal" and that the "CUE motion must be dismissed without prejudice to refil[]ing."  The moving party appealed. 

In March 2013, the Court affirmed the Board's September 2011 decision.  The Court, however, modified the decision to reflect a determination that the Board found lack of a proper CUE claim.  The Court agreed that there was no valid CUE claim, in part, because the arguments contained in the January 2011 CUE motion essentially reiterated the moving party's arguments in support of his claims for DIC and accrued benefits.  Thus, the September 2011 Board decision was modified to reflect that the claim of CUE in the March 2004 decision was dismissed without prejudice.  

Finally, in August 2013, the Board dismissed the moving party's motion for reconsideration of the September 2011 decision because that decision had been affirmed on appeal and confirmed the previous denial of the reconsideration of the March 2004 Board decision. 

The Board finds that the moving party's claims of CUE in the March 16, 2004, and September 2, 2011, Board decisions must be dismissed.  Such claims are expressly prohibited by regulation.  See 38 C.F.R. § 20.1400(b).  In June 2005 and March 2013 decisions, the Court affirmed the March 2004 and September 2011 Board decisions, respectively; therefore, no claim of CUE in a Board decision may be considered.  See Disabled American Veterans, 234 F.3d at 693 (noting that the Board is prevented from reviewing for CUE an issue from a prior decision where the decision on that issue has been affirmed by the Court); see also Winsett, 341 F.3d at 1331-1332 (noting that the Court's opinion on an issue replaces the Board decision on that issue).  The moving party's proper avenue for relief from a Board decision that is affirmed by the Court is to appeal to a higher tribunal.  38 U.S.C.A. § 7292(a), (c) (West 2002) (stating that the United States Court of Appeals for the Federal Circuit has jurisdiction over appeals of the decisions of the Court of Appeals for Veterans' Claims).  Accordingly, the moving party's claims are dismissed.


ORDER

The claims for revision of the March 16, 2004, and September 2, 2011, Board decisions on the grounds of CUE are dismissed.




                       ____________________________________________
JESSICA J. WILLS
	Veterans Law Judge, Board of Veterans' Appeals