Citation Nr: 21004560 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-34 526 DATE: January 27, 2021 ORDER Entitlement to revision of an August 7, 1980, rating decision that failed to adjudicate a claim of service connection for gastritis and/or irritable bowel syndrome (IBS), on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is dismissed. FINDING OF FACT The RO, in an October 2020 rating decision, denied the Veteran’s motion for revision of an August 7, 1980, rating decision that failed to adjudicate a claim of service connection for gastritis and/or IBS, on the basis of CUE pursuant to 38 C.F.R. § 3.105; the Veteran has not initiated appellate review at the Board. CONCLUSION OF LAW The Board does not have appellate jurisdiction to review the claim of entitlement to revision of an August 7, 1980, rating decision that failed to adjudicate a claim of service connection for gastritis and/or IBS, 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 CONCLUSION The Veteran served on active duty in the U.S. Army from July 1976 to July 1979. In June 2019, the Board remanded the Veteran’s motion of CUE in an August 1980 rating decision for adjudication by the Agency of Original Jurisdiction (AOJ) in the first instance. In April 2020, the Regional Office (RO) denied the Veteran’s motion for revision of an August 7, 1980 rating decision in a Supplemental Statement of the Case (SSOC). Upon return of the appeal in September 2020, the Board determined that an SSOC cannot serve to announce decisions on issues in the first instance. 38 C.F.R. § 19.31(a). The Board remanded the claim to the RO to issue a rating decision to adjudicate the claim of CUE in an August 1980 rating decision that failed to adjudicate a claim for service connection for gastritis and/or IBS. In October 2020, the RO denied the Veteran’s motion for revision of an August 7, 1980, rating decision in a rating decision and SSOC. The RO found that revision was not warranted because the Veteran did not list gastritis or IBS in his August 1979 claim, and that no diagnosis of either disability was rendered by the June 1980 VA examiner. 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 October 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 October 2020 rating decision which denied the motion for CUE in an August 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 asserted CUE in other prior final rating decisions, 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). Consequently, the Veteran’s motion for revision of an August 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 claim is dismissed. WILLIAM H. DONNELLY 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.