Citation Nr: A21019846 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 200110-53281 DATE: December 14, 2021 ORDER The matter of whether there was clear and unmistakable error (CUE) in the March 1986 rating decision that was confirmed that denied service connection for nervous/mental disorders is dismissed. REMANDED The motion to revise the May 2005 rating decision which denied service connection for PTSD, to include based on CUE, is remanded. FINDING OF FACT The Board does not have jurisdiction to adjudicate a rating decision that has been affirmed by a subsequent Board decision as it was subsumed by the final appellate decision. CONCLUSION OF LAW The matter of whether there was clear and unmistakable error (CUE) in the March 1986 rating decision that was confirmed that denied service connection for nervous/mental disorders is dismissed. 38 C.F.R. § 20.1104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1977 to June 1980. The Veteran has been in receipt of a 100 percent disability rating from January 24, 2008. In the January 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board only considered the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In April 2017, the Veteran submitted a motion to revise the September 1986 rating decision that denied service connection for the Veteran's psychiatric condition based on CUE. In December 2020, a Board decision adjudicated the Veteran's motion to revise a May 2005 rating decision which also denied service connection for PTSD. The Veteran appealed to the Court of Appeals for Veterans Claims (the Court). In a September 2021 Joint Motion for Remand (JMR), the Court vacated and remanded the Board's December 2020 decision. The Court noted the Board should not have adjudicated the question of the May 2005 rating decision as it did not have jurisdiction over the matter because it had not yet been addressed by the Regional Office (RO). Important for this case, the Court also noted the Board should have addressed the Veteran's claim to whether there was CUE in a September 1986 rating decision that was later confirmed by a March 1989 Board decision. Thus, this matter is the subject of this decision. However, the Board notes that when a determination of the RO is affirmed by the Board, the determination is subsumed by the final appellate decision. 38 C.F.R. § 20.1104. Once an AOJ/RO decision is subsumed by a Board decision, the AOJ/RO decision is no longer subject to collateral attack based on an assertion of CUE. See Brown v. West, 203 F.3d. 1378, 1380-81 (Fed. Cir. 2000) "[A] [CUE] challenge to an RO determination may not be raised before the RO ... if the Board...has sustained the RO determination the same issue."). Based on the aforementioned, the September 1986 rating decision was subsumed by the March 1989 Board decision. Thus, because the March 1989 Board decision became final, it is not subject to revision in the absence of CUE in the decision. Thus, the Board finds a valid CUE claim has not been reasonably raised by the April 2017 motion and therefore, must be dismissed. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (holding that for a claim of CUE to be reasonably raised, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUIE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error.) Crippen v. Brown, 9 Vet. App. 412-420 (1996). Therefore, the claim will be dismissed. REASONS FOR REMAND The matter of the Veteran's motion to revise the May 2005 rating decision which denied service connection for PTSD, to include based on CUE, is remanded. As the Court noted in its September 2021 JMR, the RO has not yet had an opportunity to adjudicate this matter and therefore, the Board does not have jurisdiction over it. (Continued on the next page) The matters are REMANDED for the following action: Adjudicate the Veteran's motion to revise the May 2005 rating decision which denied service connection for PTSD, to include based on CUE. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.