Citation Nr: 21065745
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 20-30 340
DATE: October 27, 2021

ORDER

An August 2020 motion for reversal or revision, on the basis of clear and unmistakable error (CUE), of a July 2019 Board of Veterans' Appeals (Board) decision that remanded a claim of entitlement to a compensable rating for service-connected sinusitis with seasonal rhinitis is dismissed.

FINDING OF FACT

The Board's July 2019 remand as to the claim of entitlement to a compensable rating for service-connected sinusitis with seasonal rhinitis is not a final decision.  Thus, it is not subject to revision on the basis of CUE. 

CONCLUSION OF LAW

An August 2020 motion for reversal or revision, on the basis of CUE, of a July 2019 Board decision that remanded a claim of entitlement to a compensable rating for service-connected sinusitis with seasonal rhinitis is dismissed.  38 U.S.C. §§ 5109A, 7103, 7104, 7111; 38 C.F.R. §§ 20.1100, 20.1400-1411.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1990 to October 2010.

This matter is before of the Board via an August 2020 motion in which the Veteran contended that a July 2019 decision contained CUE in remanding the issue of entitlement to a compensable rating for service-connected sinusitis with seasonal rhinitis.

In addressing the Veteran's August 2020 motion, the Board first notes that a prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final 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 CUE except for those decisions which have been appealed to and decided by the 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.

A remand is in the nature of a preliminary order and, accordingly, it does not constitute a decision of the Board on the merits of the appeal.  See 38 C.F.R. § 20.1100(b). 

Here, in July 2019, the Board, in pertinent part, remanded the issue of entitlement to a compensable rating for service-connected sinusitis with seasonal rhinitis.  As the Board's action with respect to this increased rating issue was a remand, there is no final decision for the Board to review on the basis of CUE.  Accordingly, the Board does not have jurisdiction to adjudicate the merits of the August 2020 motion and it is dismissed.

In dismissing the instant matter, the Board notes that the August 2020 motion also contained contentions with respect to a recent June 2020 rating decision that  addressed sinusitis and rhinitis as separate service-connected disabilities and then: (1) denied a compensable rating for sinusitis, but (2) awarded an increased 10 percent rating for rhinitis, effective December 18, 2019.  This June 2020 rating decision was issued following the development ordered by the Board pursuant to the July 2019 remand.  Following the June 2020 rating decision, the Veteran's increased rating claim remained in active status.  Indeed, the issue of entitlement to increased ratings for sinusitis and rhinitis was returned to the Board in July 2020 and will be addressed by the Board in a separate decision.  Thus, the Board's instant dismissal of the August 2020 motion does not foreclose the possibility of her contentions regarding increased ratings from being addressed.

 

 

S.C. KREMBS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N.S. Pettine, 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.