Citation Nr: 18155973
Decision Date: 12/06/18	Archive Date: 12/06/18

DOCKET NO. 15-37 635
DATE:	December 6, 2018
ORDER
The motion to revise the May 2014 rating decision that assigned a temporary total evaluation (period of convalescence in lieu of mandatory total evaluation for 13 months) following left hip revision on the basis of clear and unmistakable error (CUE) is dismissed.
FINDING OF FACT
In a September 2018 decision, the Board found that the RO improperly assigned a temporary total evaluation from February 5, 2013, to March 31, 2013.
CONCLUSION OF LAW
There being no justiciable case or controversy, the Veteran’s motion to revise the May 2014 rating decision that assigned a temporary total evaluation following left hip revision is dismissed.  38 U.S.C. § 7105 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active duty from July 2000 to August 2008.
The Veteran alleged CUE in a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 
The motion to revise the May 2014 rating decision that assigned a temporary total evaluation (period of convalescence in lieu of mandatory total evaluation for 13 months) following left hip revision on the basis of CUE is dismissed.
The Veteran asserts CUE in the May 2014 rating decision that assigned a temporary total evaluation from February 5, 2013, to March 31, 2013, following left hip revision.  The Veteran asserts that the RO should have assigned a temporary total evaluation for a total of 13 months following the left hip revision.  In a September 2018 decision, the Board found that the RO improperly assigned a temporary total evaluation from February 5, 2013, to March 31, 2013:  stating that the RO should have granted a 100 percent rating for 13 months following the February 2013 left hip surgery.  As the propriety of the temporary total evaluation assigned in the May 2014 rating decision issue was on direct appeal, there is no final adverse decision that can be subject to a CUE attack; thus, as a matter of law, the Veteran cannot assert a claim of CUE.  Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997).  In any event, the relief sought was answered in the Board’s September 2018 decision and the claim is rendered moot.
 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Joshua Castillo, Counsel