Citation Nr: 19192555 Decision Date: 12/12/19 Archive Date: 12/10/19 DOCKET NO. 16-08 886 DATE: December 12, 2019 ORDER Whether a prior rating decision denying eligibility for education benefits under 38 U.S.C. Chapter 30 (Montgomery GI Bill) contained clear and unmistakable error (CUE) is dismissed. FINDING OF FACT There is currently no justiciable case or controversy for active consideration by the Board on the issue of whether there was CUE in a prior rating decision denying education benefits under 38 U.S.C. Chapter 30. CONCLUSION OF LAW The criteria for dismissal of the claim regarding whether there was CUE in a prior final rating decision denying education benefits under Chapter 30 have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.105(a), 19.4, 19.5. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from May 1989 to April 1991. He also served with the Army National Guard from June 2003 to June 2009. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to appear at Board hearing in July 2018 pursuant to his request for such a hearing, but he did not report to the hearing as scheduled. The electronic Veterans Appeals Control and Locator System (VACOLS) indicates that an April 2018 rating decision has been the subject of a NOD filed in June 2018. This system also indicates that the RO is continuing to work on the matter. Thus, as the RO has acknowledged receipt of the NOD and VACOLS indicates that further action is pending at the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. Accordingly, Manlincon is not applicable in this matter and the claim remains under the jurisdiction of the RO at this time. The Veteran’s personnel records show that in June 1989 he signed the Veteran’s Education Assistance Act of 1984 (New GI Bill) wherein he enrolled in education benefits under 38 U.S.C. Chapter 30 and accepted the terms outlined on the form. Those terms informed the Veteran that he must use the benefits within 10 years of his separation or discharge from active duty or complete his Selected Reserve obligation. As noted above, the Veteran was discharged from active duty in April 1991. In October 2014, he filed an application for Chapter 30 education benefits. The Agency of Original Jurisdiction (AOJ) denied the application in October 2014 because the delimiting date of his Chapter 30 benefits had passed. On his February 2016 VA Form 9, the Veteran indicated that he was not appealing “the eligibility period or the delimiting date” but the fact that he was denied previously “during the eligibility period of April 5, 1991, to April 6, 2001.” Thus, the Veteran is alleging there was clear and unmistakable error in the prior denial. However, because the record before the Board did not contain the prior denial that he was referring to, the Board remanded the matter to the AOJ to obtain the prior decision. After uploading the Veteran’s education file, the AOJ was unable to locate a prior decision denying the Veteran Chapter 30 education benefits. The AOJ provided notice of that fact to the Veteran in September 2019 and provided him with the opportunity to present evidence of the denial, including a copy of the prior denial. No additional evidence has been received to date. Moreover, when asked on his September 2006 application for Montgomery GI Bill-Selected Reserve (10 U.S.C. 1606) benefits whether he had previously applied for educational assistance benefits and under what program, the Veteran marked “none”. In order to reverse or revise a decision based on clear and unmistakable error, there must be a prior final decision that is binding. 38 C.F.R. §§ 3.105(a), 19.5. Thus, in this case, in the absence of a prior final rating decision, there is no justiciable case or controversy before the Board at this time as contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R. § 19.4. Consequently, in the absence of any justiciable questions, the appeal as to the issue of whether there was clear and unmistakable error (CUE) in a prior final rating decision that denied entitlement to Chapter 30 education benefits must be dismissed. Id. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.