Citation Nr: 1614944 Decision Date: 04/13/16 Archive Date: 04/26/16 DOCKET NO. 11-33 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the effective date of January 17, 1992 for the grant of service connection for residuals of lumbar laminectomy assigned in a March 1995 rating decision may be challenged on the basis of clear and unmistakable error (CUE) in that decision. REPRESENTATION Veteran represented by: Lisa A. Lee, Esq. ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1959 to September 1961. This case comes before the Board of Veterans' Appeals (the Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. As discussed in more detail below, the Board is dismissing the Veteran's claim alleging CUE in the March 1995 rating decision because that decision was subsumed by an October 2005 Board decision. In order to collaterally attack the issue of the January 17, 1992, effective date for a low back disability, the issue of CUE must be raised with respect to the October 2005 Board decision. See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). If the Veteran wishes to challenge a Board decision based on CUE, he would have to do so through an appropriate motion alleging CUE in the October 2005 Board decision, which he has not done. See 38 C.F.R. §§ 20.1400-20.1411 (2015) (setting out procedures for claiming CUE in a Board decision). While the Board retains the authority to raise a CUE claim sua sponte, to do so would significantly prejudice the Veterans's ability to fully and completely raise such a claim because a claimant is only afforded one opportunity to have a CUE motion based on a Board decision adjudicated. See 38 C.F.R. § 21.1400, 1409 (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In the March 1995 rating decision, the Veteran was granted service connection for a low back disability effective January 17, 1992. 2. In the October 2005 Board decision, the Board denied the claim for an effective date earlier than January 17, 1992, on its merits, de novo. CONCLUSION OF LAW The March 1995, rating decision was subsumed by the Board's October 2005, decision and and is not subject to challenge based on CUE. See Dittrich v. West, 163 F.3d 1349, 1352-53 (Fed. Cir. 1998); Donovan v. West, 158 F.3d 1377, 1381-82 (Fed. Cir. 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014). The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The United States Court of Appeals for Veterans Claims (the Court), however, has held that VA's duties to notify and assist contained in the VCAA do not apply to claims of CUE. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Legal Criteria Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. §§ 3.104, 3.105(a) (2015). When a RO decision is not appealed to the Board, but is later reviewed de novo by the Board (i.e., on appeal from a subsequent RO decision regarding the merits of the claim), the unappealed RO decision is subsumed by the Board decision and may not be collaterally attacked. See Dittrich v. West, 163 F.3d 1349, 1352-53 (Fed. Cir. 1998); Donovan v. West, 158 F.3d 1377, 1381-82 (Fed. Cir. 1998). If a Board decision subsumes an unappealed RO determination, the Veteran may not challenge the original RO determination as containing CUE, but must proceed before the Board to claim that there was CUE in the Board decision that subsumed the unappealed RO determination. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). To allow such a challenge would, in effect, improperly allow the RO to review the determinations of the Board. Id. See also Smith v. Brown, 35 F.3d 1516, 1526 (Fed.Cir.1994). Analysis In this case, the Veteran has alleged there was CUE in the March 1995 ratings decision with regard to the effective date for service-connected residuals of a low back injury. However, the March 1995 decision was subsumed by the Board's October 2005 decision, and may not be collaterally attacked via a claim of CUE. The March 1995, rating decision granted service connection for the residuals of a low back injury effective January 17, 1992. The decision was not appealed within one year. However, a claim of CUE was made in August 1997, assertimg that the Veteran was entitled to an earlier effective date because there was CUE in rating decisions from December 1961 and December 1963. In January 2000, the Board recharacterized this claim as to include entitlement to an effective date for service connection for a lumbar spine disorder, earlier than January 17, 1992. The issue of the proper effective date for service connection for a lumbar spine disorder earlier was originally adjudicated by the March 1995 decision. Therefore, the January 2000 Board recharacterization and subsequent October 2005 Board decision denying an earlier effective date than January 17, 1992, substantively adjudicated the same issue as the March 1995 rating decision. Addtionally, the October 2005 Board decision adjudicated the issue of the proper effective date on its merits, de novo. The Veteran was given the opportunity to argue the claim, and did so exetensively. This issue was the subject of two Joint Motions for Remand (JMRs) granted by the United States Court of Appeals for Veterans Claims (Court), and the Veteran submitted briefs to the Board in May 2004, August 2004, and December 2004 that directly argued for an effective date earlier than January 17, 1992. These briefs specifically argued that statements made between December 1963 and January 1992 constituted informal claims for service connection for a low back disability. The October 2005 Board decision addressed each individual statement that the Veteran alleged to constitute an informal claim in the Reasons and Basis section. Thus, the October 2005 Board decision substantively addressed the issue of the proper effective date in the March 1995 rating decision, and adjudicated it de novo based on the merits. As such, the October 2005 Board decision subsumed the March 1995 rating decision. See Dittrich v. West, 163 F.3d 1349, 1352-53 (Fed. Cir. 1998); Donovan v. West, 158 F.3d 1377, 1381-82 (Fed. Cir. 1998). Accordingly, the Veteran's June 2009 claim alleging that there was CUE in the March 1995 rating decision must be dismissed, because that decision was subsumed by the October 2005 Board decision, and cannot be attacked collaterally via a claim of CUE. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). ORDER The Veteran's claim is dismissed. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs