Citation Nr: 18161289
Decision Date: 12/31/18	Archive Date: 12/31/18

DOCKET NO. 15-28 126
DATE:	December 31, 2018

ORDER

The issue of entitlement to revision of May 1989, December 1995 and July 2002 rating decisions on the basis of clear and unmistakable error (CUE) is denied.

FINDINGS OF FACT

1. In a December 2008 decision, the Board denied revision of the May 1989, December 1995 and July 2002 rating decisions on the basis of CUE.

2. The Veteran has not raised any new argument or theory to support revision of the May 1989, December 1995 and July 2002 rating decisions that was not previously considered by the Board.

CONCLUSION OF LAW

The criteria for revision of the May 1989, December 1995 and July 2002 rating decisions rating decision on the basis of CUE have not been satisfied.  38 U.S.C. §§ 7104, 7104; 38 C.F.R. §§ 20.201, 20.1100, 20.1400.



REASONS AND BASES FOR FINDING ANDS CONCLUSIONS

This matter comes before the Board on the moving party’s April 2011 motion to revise the May 1989, December 1995 and July 2002 rating decisions on the basis of CUE.  In essence, the Veteran argues that VA failed to obtain evidence or that evidence was removed from his file that would have shown that an earlier claim seeking service connection for a psychiatric disorder had been made, and thus an earlier effective date should be established for service connection.  See April 2011 Correspondence; June 2018 Appellant’s Brief.  

The Board previously considered the Veteran’s arguments in a December 2008 decision and denied entitlement to revision of the May 1989, December 1995 and July 2002 rating decisions on the basis of CUE.  The Veteran cannot challenge the merits of the Board’s December 2008 decision by raising the same, previously raised arguments in a motion for revision submitted to the Agency of Original Jurisdiction.  See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (construction of regulation to permit review by AOJ of a Board decision to be avoided); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) (“an [AOJ] must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal”).  

Furthermore, a breach of the duty to assist cannot constitute CUE.  Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also Caffrey v. Brown, 6 Vet. App. 377, 384 (1994).  As noted by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Cook, the requirements that a clear and unmistakable error be both outcome determinative and based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim.  Cook, 318 F.3d at 1346.  

To the extent that the Veteran’s motion could be construed as a motion for revision of the April 2005 rating decision on the basis of CUE, such a motion would likewise fail because the April 2005 rating decision was subsumed by the December 2008 Board decision.  See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000); Manning v. Principi, 16 Vet. App. 534, 540-41 (2002) (regarding delayed subsuming).  To date, the Veteran has not alleged that the December 2008 Board decision contains CUE.  Thus, the Veteran’s motion for revision of the May 1989, December 1995 and July 2002 rating decisions is denied.



 

STEVEN D. REISS

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	Tracie N. Wesner, Counsel