Citation Nr: 20008450
Decision Date: 01/31/20	Archive Date: 01/31/20

DOCKET NO. 18-46 067
DATE: January 31, 2020

ORDER

The motion to revise on the basis of clear and unmistakable error (CUE) a September 19, 2018 Board decision denying an effective date earlier than June 28, 2011 for the award of the grant of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), is dismissed.

 

FINDING OF FACT

In July 2019, the Board issued an order vacating that portion of the September 19, 2018 Board decision denying an effective date earlier than June 28, 2011 for the award of a TDIU.

CONCLUSION OF LAW

The motion to revise the September 19, 2018 Board decision denying an effective date earlier than June 28, 2011, for the award of a TDIU, on the grounds of CUE, is moot.  38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404, 20.1000.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, who is the moving party, served on active duty from July 2005 to January 2006 and from April 16, 2010 to April 18, 2010.  

This matter is before the Board as an original action on the September 2018 motion of the Veteran in which he alleges CUE in the September 2018 Board decision.   

Whether there was CUE in a September 19, 2018 Board decision denying an effective date earlier than June 28, 2011, for the award of a TDIU.

A prior final Board decision must be revised where evidence establishes that there is CUE in the prior final decision.  38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02.  All final Board decisions are subject to revision on the basis of CUE, except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court.  38 C.F.R. § 20.1400.

Here, the September 2018 Board decision denied an effective date earlier than June 28, 2011, for the award of a TDIU.  (The Board also remanded an increased rating claim for anxiety disorder.  That issue is currently pending at the RO.)  

The Veteran filed the instant CUE motion on the same day the Board issued the decision in September 2018.  In June 2019, he also filed a motion for reconsideration of the decision.  

On its own motion, the Board in July 2019 issued an order vacating that portion of the September 19, 2018 Board decision denying entitlement to an effective date earlier than June 28, 2011, for the award the TDIU.  The Board’s order vacated the same issue that is the subject of the instant CUE motion.  

Because the Board vacated that portion of the September 11, 2018 decision, it is nonfinal and can no longer be subject to a CUE motion.  As such, the Veteran’s CUE motion is dismissed.  

A decision on the earlier effective date will be issued at a later time.  That decision will be sent to the Veteran and his representative under separate cover when issued.

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Bosely, 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.