Citation Nr: 21061480
Decision Date: 10/04/21	Archive Date: 10/04/21

DOCKET NO. 21-00 018
DATE: October 4, 2021

ORDER

The motion to revise the December 2019 Board decision on the basis of clear and unmistakable error is moot and is dismissed.

FINDINGS OF FACT

1. In a December 23, 2019, decision, the Board granted a 30 percent disability rating for bilateral hearing loss.

2. In January 2021, the Board issued a motion to revise the December 2019 decision on the basis of clear and unmistakable error.  

3. In September 2021, the Board issued a separate decision vacating the December 2019 decision.

CONCLUSION OF LAW

Due to the vacatur of the December 2019 Board decision, the January 2021 motion to revise that December 2019 decision on the basis of clear and unmistakable error is moot and is dismissed.  38 U.S.C. § 7111; 38 C.F.R. §§ 20.1405, 20.1407.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from May 1954 to May 1957 and from October 1961 to August 1962.  This matter comes before the Board from its own January 2021 motion to revise the December 2019 decision of the Board pursuant to 38 C.F.R. § 20.1407.

The December 2019 decision granted a 30 percent disability rating for the Veteran's service-connected bilateral hearing loss based largely on the results of a January 2016 audiological examination.  However, it appears that the Board miscalculated the results of this examination in arriving at a 30 percent disability rating and its application of the rating criteria for this disability.  After the January 2021 motion, the Board then issued a January 2021 decision vacating the Board's December 2019 decision and readjudicating the appeal for a higher rating for disability rating.  Ultimately, the Board determined that the criteria for a 40 percent disability rating were met.

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A prior final Board decision must be reversed or revised where evidence establishes that there is clear and unmistakable error in the 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 clear and unmistakable error, except for those decisions which have been appealed to and decided by the United States Court of Appeals for Veterans Claims (Court) and decisions on issues which have subsequently been decided by the Court.  38 C.F.R. § 20.1400.  The Board may undertake a review on its own motion.  See 38 C.F.R. § 20.1407.  When this occurs, 60-day notice must be provided to allow for a response.  Id.  

Here, the underlying December 2019 decision that is the subject of the January 2021 motion has now been vacated.  As a result, there remains no final Board decision to be challenged on the basis of clear and unmistakable error.  The Board therefore finds that its January 2021 motion must be dismissed as a matter of law.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Whitelaw, 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.