Citation Nr: A21017779 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 190802-28426 DATE: November 3, 2021 ORDER Entitlement to an earlier effective date for a TDIU based on clear and unmistakable error (CUE) is dismissed. FINDING OF FACT The Agency of Original Jurisdiction (AOJ) did not issue a rating decision addressing whether there was CUE in a prior final rating decision. CONCLUSION OF LAW The criteria for dismissal of entitlement to an earlier effective date for a TDIU based on CUE are met. 38 U.S.C. §§ 5109A, 7105 (d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1989 to December 1992. This matter is on appeal to the Board of Veterans' Appeals (Board) from a July 2019 rating decision. Following the issuance of the July 2019 rating decision, the Veteran submitted a timely VA Form 10182, Decision Review Request: Board Appeal, and elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing, which was held on March 9, 2021. 38 C.F.R. § 20.302(a). By way of background, the Veteran was granted entitlement to a TDIU in a July 2014 rating decision effective May 2, 2013. The Veteran did not file a timely notice of disagreement, nor was new and material evidence submitted within the appeal period. Therefore, the decision became final. In April 2019, the Veteran submitted correspondence stating she was filing for "clear and unmistakable error for an earlier effective date for individual unemployability." An April 2019 rating decision denied the Veteran's claim for an earlier effective date, citing to the effective date regulations. In the decision, the RO (Regional Office) stated that the CUE motion was received, however, the Veteran did not identify the alleged error. The Board notes that the Veteran also did not identify the rating decision being challenged. In June 2019, the Veteran submitted correspondence stating she wished to "submit a request for the reconsideration of a clear and unmistakable error in regard to an earlier effective date." It was further stated she was submitting evidence that she filed for a TDIU in 2008. In another June 2019 statement, it was stated that the Veteran "applied for individual unemployability in 2009 and feels that she should have been compensated to the original date." In June 2019, the Veteran a VA Form 20-0995 Decision Review Request: Supplemental Claim requesting "reconsideration for earlier effective date for individual unemployability." This prompted the July 2019 decision on appeal which found that a clear and unmistakable error was not found in the April 2019 rating decision. In the decision, the relevant regulations for both effective dates and CUE were cited. The decision stated that the request for an earlier effective date based on CUE was received, however, the Veteran did not identify the error, and a review of the evidence did not show that an earlier effective date is warranted. In her hearing, the Veteran clarified that she applied for a TDIU in person in 2008 or 2009. However, a December 2009 rating decision only addressed an increased rating claim for post-head trauma with post-traumatic headaches, and the July 2014 rating decision granting entitlement to a TDIU assigned an effective date of May 2, 2013. Thus, it appears that the Veteran is contending CUE in either the December 2009 or May 2013 rating decisions. At the outset, the Board notes that under 38 C.F.R. § 3.2500 (f), a supplemental claim cannot be filed in connection with a denial of a request to revise a final decision of the AOJ based on CUE. However, the April 2019 rating decision that prompted the supplemental claim was framed as an earlier effective date claim rather than CUE because, as stated in the decision, the Veteran did not identify an error (or even a decision) that required revision. Thus, the Board finds that provision inapplicable here. Moreover, while the July 2019 rating decision appeared to consider CUE in the April 2019 rating decision denying an earlier effective date for TDIU, that decision was still non-final and pending on appeal and, thus, could not be subject to a CUE motion. A CUE claim cannot be filed as to a matter that is still appealable or pending. See May v. Nicholson, 19 Vet. App. 310, 317 (2005) (stating that a CUE claim "cannot lie as to a decision that is still open to direct review"). Pursuant to 38 C.F.R. § 3.105 (a)(1), decisions are final when the underlying claim is finally adjudicated as provided in § 3.160 (d). Section 3.160 (d) states that a claim that is adjudicated by the Department of Veterans Affairs as either allowed or disallowed is considered finally adjudicated when . . . (2) For claims under the modernized review system, the expiration of the period in which to file a review option available under § 3.2500 or disposition on judicial review where no such review option is available. The AOJ has not adjudicated a motion for revision of a prior final rating decision based on CUE in the first instance. The Court of Appeals for Veterans Claims has held that each theory of CUE is a separate "claim" that the RO must adjudicate in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002). As the Veteran's contentions of CUE have not been adjudicated in the first instance by the AOJ, the Board does not have jurisdiction over the claim. See Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (explaining that 38 U.S.C. § 5109A requires that a request for revision of a final RO decision on the basis of CUE be submitted to the RO for initial adjudication). The Board also notes that remand is not an available option because there is no pre-decisional error or error in satisfying a regulatory or statutory duty. See 38 C.F.R. § 20.802 (a). Prior to the hearing, which took place after the decision on appeal, the Veteran did not identify the decision that she was seeking to revise based on CUE, nor did she specify an error that was committed in that decision. While the Board regrets the dismissal, the Veteran is invited to file a supplemental claim pursuant to 38 C.F.R. § 3.2500 (c)(3). It is emphasized, however, that CUE motions must specifically identify the decision and issue being attacked. CUE must be pled with some degree of specificity as to the alleged error and, unless it is the kind of error that if true would be CUE on its face, the claimant must also give specific arguments as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). The Veteran's claim is dismissed without prejudice for the Board's lack of jurisdiction. 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.