Citation Nr: 21063555 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 13-31 912 DATE: October 14, 2021 REMANDED Whether there was clear and unmistakable error (CUE) in a March 2010 rating decision that assigned an effective date of December 1, 2009 for a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1974 to January 1980. This matter is on appeal to the Board of Veterans' Appeals (Board) from a May 2013 rating decision. The matter was initially denied in a July 2015 Board decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2017 Memorandum Decision, the Court set aside the Board's decision and remanded the claim to the Board for further proceedings consistent with the decision. Specifically, the Court held that the Board had erred in failing to address whether an April 2010 statement from the Veteran could have been construed as both a notice of disagreement (NOD) and a substantive appeal. The Court also held that, pursuant to Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006), the Board did not have jurisdiction over the RO CUE issue. In that regard, the Court found that the RO in the May 2013 rating decision merely recounted the evidence broadly and determined there was no CUE in the March 2010 rating decision, rather than addressing the specific CUE theories advanced by the Veteran. Upon the matter returning to the Board, in a January 2018 decision, the Board found 1) that a timely substantive appeal was not filed to a March 30, 2010, rating decision assigning an effective date of December 1, 2009 for the grant of a TDIU; 2) that the Board did, in fact, have jurisdiction over the issue of CUE in that decision and 3) found no CUE in the March 2010 RO rating decision. The Veteran again appealed the Board decision to the Court. In a November 2018 Order, the Court granted a Joint Motion for Partial Remand (JMPR), which dismissed the timely substantive appeal issue and remanded the question of CUE in the March 2010 RO rating decision. Specifically, the parties agreed that the Board erred, pursuant to Jarrell, when it found that all the Veteran's theories of CUE had been adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ). Pursuant to the November 2018 JMPR, the Board remanded the issue of CUE in the March 2010 rating decision for initial adjudication by the RO of all the Veteran's CUE theories in a May 2019 decision. A Supplemental Statement of the Case (SSOC) was issued in June 2020. Because an SSOC cannot serve to announce decisions on issues in the first instance under 38 C.F.R. § 19.31 (a), the matter was remanded again in a May 2021 Board decision, directing the RO to issue a rating decision to adjudicate the CUE claim. Following the issuance of the May 2021 Board decision, another SSOC was issued in July 2021. As stated in the previous decision, an SSOC, by its own terms, cannot be used to decide any new issues. See 38 C.F.R. § 19.31 (a). This is in violation of long-standing VA policy and relevant regulations governing what issues can be addressed in an SSOC. See id. Therefore, the previous remand directives were not complied with. The matter is REMANDED for the following action: Issue a rating decision adjudicating in the first instance the Veteran's contentions of CUE in the March 2010 rating decision. It is emphasized that this directive requires issuance of a rating decision, and not a re-adjudication through an SSOC. It is further emphasized that each specific contention of CUE must be adjudicated. The Veteran's contentions can be found in the September 2012 and April 2019 briefs. L.M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.