Citation Nr: 21000128 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-28 316 DATE: January 4, 2021 ORDER Entitlement to revision of a February 1, 1980, rating decision that denied service connection for hearing loss, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is dismissed. Entitlement to revision of a February 1, 1980, rating decision that denied service connection for ringing in ears, on the basis of CUE pursuant to 38 C.F.R. § 3.105, is dismissed. FINDING OF FACT The RO, in an August 2020 rating decision, denied the Veteran’s motions for revision of a February 1, 1980 rating decision that denied service connection for hearing loss with ringing in the ears, on the basis of CUE pursuant to 38 C.F.R. § 3.105; the Veteran has not initiated appellate review at the Board. CONCLUSIONS OF LAW 1. The Board does not have appellate jurisdiction to review the claim of entitlement to revision of a February 1, 1980, rating decision that denied service connection for hearing loss, on the basis of CUE pursuant to 38 C.F.R. § 3.105. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.201, 20.202. 2. The Board does not have appellate jurisdiction to review the claim of entitlement to revision of a February 1, 1980, rating decision that denied service connection for ringing in ears, on the basis of CUE pursuant to 38 C.F.R. § 3.105. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.201, 20.202. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1963 to January 1965.  The Veteran received a general discharge under honorable conditions. In October 2019, the Board denied the Veteran’s claims of entitlement to an effective date earlier than April 28, 2015 for the awards of service connection for bilateral hearing loss and tinnitus (on a basis other than CUE). The October 2019 Board decision noted that the Veteran’s representative argued at the April 2019 Board hearing that the denial of service connection for hearing loss and tinnitus in a February 1980 rating decision was CUE, but found that the CUE claims were not ripe for adjudication by the Board because they had not been adjudicated by the AOJ. Consequently, the Board also remanded the Veteran’s motions of CUE in a February 1980 rating decision for adjudication by the Agency of Original Jurisdiction (AOJ) in the first instance. In August 2020, the RO denied the Veteran’s motions for revision of a February 1, 1980 rating decision in a rating decision and Supplemental Statement of the Case (SSOC). The RO found that revision was not warranted because the effective dates assigned for the grants of service connection for bilateral hearing loss and tinnitus were not clearly and unmistakably erroneous. The modernized review system under the Appeals Modernization Act (AMA) applies to all claims for which VA issues notice of an initial decision on or after the effective date of the AMA, which is February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. The adverse August 2020 rating decision constitutes an initial decision to which AMA applies. Under AMA, appellate review at the Board is initiated by a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). 38 C.F.R. §§ 20.201, 20.202. At this time, the Veteran is within the time period to pursue an appeal of the adverse August 2020 rating decision which denied the motions for CUE in a February 1980 rating decision. As a VA Form 10182 has not been received, these issues are not under the Board’s jurisdiction. Pursuant to 38 C.F.R. § 20.200, the RO must inform the Veteran of his appellate rights to initiate an appeal. To the extent that the Veteran’s representative asserted CUE in a February 1980 rating decision in the context of the Veteran’s earlier effective date claims at the April 2019 Board hearing, an assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). “[E]ach wholly distinct and different CUE theory underlying a request for revision is a separate matter and, when attacking a prior [AOJ] decision, each must be presented to and adjudicated by the [AOJ] in the first instance and, if not, the Board lacks jurisdiction over the merits of the matter.” Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006). Binding precedent also dictates that jurisdiction over an earlier effective date appeal does not confer jurisdiction over an allegation of CUE in a prior final rating decision. Phillips v. Brown, 10 Vet. App. 25, 33 (1997). To the contrary, “[w]hile a veteran may certainly seek an earlier effective date through a subsequent adjudication of a reopened claim while simultaneously pursuing a CUE claim, those issues are not inextricably related.” Id. (Continued on the next page)   Consequently, the Veteran’s motions for revision of a February 1980 rating decision is not currently ripe for appellate review at this time and will be decided in a later Board decision, if appropriate. The Board does not have appellate jurisdiction at this time and can take no action on this matter. 38 C.F.R. §§ 20.202, 20.204. The claims are dismissed. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.