Citation Nr: 18147277 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-30 425 DATE: November 2, 2018 ORDER Whether there was clear and unmistakable error (CUE) in rating decisions of the Regional Office (RO) issued prior to the January 1990 decision of the Board denying an earlier effective date prior to January 22, 1986, for service connection for bilateral pes planus with degenerative changes is dismissed. FINDING OF FACT 1. A June 1984 Board decision affirmed the March 1982 rating decision denying service connection for bilateral pes planus. 2. A March 1988 Board decision granted service connection for bilateral pes planus effective January 22, 1986. 3. An April 1988 rating decision implemented the award of service connection for bilateral pes planus effective from January 22, 1986; the Veteran appealed the effective date assigned. 4. A January 1990 Board decision found that an effective date prior to January 22, 1986, for the establishment of service connection for bilateral pes planus with arthritis of the feet was not warranted. 5. By rating action dated in February 2016, the RO found that the decision to deny an earlier effective date for service connection for bilateral pes planus with degenerative changes based on a CUE was proper. CONCLUSION OF LAW The issue of whether there was CUE in rating decisions of the RO issued prior to the January 1990 decision of the Board denying an earlier effective date prior to January 22, 1986, for service connection for bilateral pes planus with degenerative changes is dismissed for lack of jurisdiction. 38 U.S.C. §§ 7104, 7105, 7108 (2012); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302, 20.1100, 20.1104 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to November 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision. Generally, the Board’s jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.101. Governing statutory and regulatory provisions require the submission, following promulgation of an adverse rating action and adequate notice thereof, of a notice of disagreement and, following issuance of a statement or supplemental statement of the case, a substantive or formal appeal, within the specific time limits established. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.302. Thus, an appeal consists of a timely filed notice of disagreement, and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. Moreover, except in limited circumstances, all Board decisions are final as of the date stamped on the face of the decision. 38 C.F.R. § 20.1100. Significantly, when a decision of the RO is affirmed by the Board, such determination is subsumed by the Board’s final decision. 38 C.F.R. § 20.1104. An RO decision denying a claim, which is later appealed to the Board and affirmed, is subsumed by that Board decision and not subject to review for CUE. See Moffitt v. Brown, 10 Vet. App. 214, 224-25 (1997); Talbert v. Brown, 7 Vet. App. 352, 355 (1995). Even if an RO decision is not appealed to the Board, if that RO decision is subsequently reopened and the issue is decided by the Board on the merits, the unappealed RO decision becomes subsumed by the subsequent Board decision. See VAOPGCPREC 14-95 (May 1995), which states that “where a Board decision involves review of evidence considered in a prior, unappealed RO decision concerning the same issues, consideration of a CUE claim regarding the prior [RO] decision would essentially permit review of an issue finally decided by the Board.” The Court of Appeals for Veterans Claims (Court) has also held that an unappealed RO decision subsequently reviewed de novo on the merits by the Board was subsumed by that Board decision and thus, was not subject to a claim of CUE as a matter of law. Donovan v. Gober, 10 Vet. App. 404, 408 (1997); see also Chisem v. Gober, 10 Vet. App. 526 (1997). In the instant case, the record reflects that a March 1982 rating decision denied service connection for bilateral flat feet. The Veteran appealed the denial, which was affirmed by the Board in June 1984. Thereafter, in pertinent part, a March 1988 Board decision granted service connection for bilateral pes planus effective January 22, 1986. An April 1988 rating decision implemented the award of service connection for bilateral pes planus effective from January 22, 1986. The Veteran appealed the effective date assigned. A January 1990 Board decision found that an effective date prior to January 22, 1986, for the establishment of service connection for bilateral pes planus with arthritis of the feet was not warranted. By rating action dated in February 2016, the RO found that the decision to deny an earlier effective date for service connection for bilateral pes planus with degenerative changes based on a CUE was proper. The Veteran has repeatedly asserted that he is not filing a claim for CUE or a freestanding earlier effective date claim. He instead maintains that the March 1982 rating decision denying service connection for bilateral pes planus should be reopened based on the submission of new and material evidence pursuant to 38 C.F.R. § 3.156. In reviewing the claim, the RO considered the rating decisions dated in March 1982, which pre-dated the Board’s June 1984 decision denying service connection for bilateral pes planus, and the April 1988 rating decision implementing the award of service connection for bilateral pes planus, which pre-dated the Board’s January 1990 decision denying an earlier effective date for the award of service connection for bilateral pes planus. Because the March 1982 and April 1988 RO decisions were effectively subsumed by the Board’s June 1984 and January 1990 decisions, respectively, a claim for CUE as to those decisions cannot be considered and must be dismissed for lack of jurisdiction. The June 1984 and January 1990 Board decisions are not subject to review by the RO. See Donovan, 10 Vet. at 409 (“an RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal”). If the Veteran desires to pursue a claim for CUE in the Board’s June 1984 decision denying service connection for bilateral pes planus, he should do so with specificity directly to the Board under the provisions of 38 C.F.R. §§ 20.1400-20.1411. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel