Citation Nr: 20021323
Decision Date: 03/25/20	Archive Date: 03/25/20

DOCKET NO. 19-31 037
DATE: March 25, 2020

ORDER

The appellant’s motion to revise a November 2009 rating decision based on clear and unmistakable error (CUE) in that decision is dismissed.

FINDING OF FACT

In November 2015 the Board of Veterans’ Appeals granted service connection for soft tissue sarcoma initially denied by RO decision dated in November 2009 and in January 2017 the Board denied entitlement to an effective date prior to February 24, 2014 for soft tissue sarcoma. The Board decisions considered the same claim as the November 2009 rating decision and were based on the same factual basis.

CONCLUSION OF LAW

The November 2009 rating decision was subsumed by the November 2015 and January 2017 Board decisions and thus, the motion to revise the November 2009 rating decision based on CUE must be dismissed. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a); Manning v. Principi, 16 Vet. App. 534, 540-41 (2002).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from January 1970 to May 1974. 

CUE 38 C.F.R. §§ 3.105

Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. However, a rating decision that is subsumed by a Board decision is not subject to revision based on CUE. The subsuming doctrine holds that when a rating decision is reviewed on the merits de novo by the Board, the rating decision is subsumed by the Board decision and may not be collaterally attacked via CUE. See 38 C.F.R. § 20.1104. 

The November 2009 rating decision was subsumed by the November 2015 and January 2017 Board decisions. The Board’s November 2015 decision clearly addresses the same claim and granted service connection for soft tissue sarcoma. The Veteran was subsequently assigned an effective date of February 24, 2014 in a November 2015 rating decision. The January 2017 Board decision also clearly addresses the same issue addressed in the November 2009 RO decision. The January 2017 Board decision denied an effective date prior to February 24, 2014 for soft tissue sarcoma, to include malignant gastrointestinal stromal tumor with metastasis to the liver. It is also clear that both Board decisions were based on the same factual basis as the November 2009 rating decision. 

Therefore, the November 2009 rating decision is no longer subject to collateral attack because it has been subsumed by the November 2015 and January 2017 Board decisions. The Board has no discretion and must dismiss the Veteran’s current motion for revision of the November 2009 rating decision based on CUE. The claim is dismissed without prejudice and the Veteran may collaterally attack the previous Board decisions. 

 

 

Vito A. Clementi

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Wozniak, Associate 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.