Citation Nr: 21026474
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 20-28 161
DATE: May 3, 2021

ORDER

The motion for reversal or revision of the March 23, 2006, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for impairment of the left tibia and fibula, to include paralysis of the leg, (a left leg condition) is dismissed.

(The matters addressing whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a left leg disability and whether there was clear and unmistakable error (CUE) in a prior rating decision that denied service connection for a left leg condition are addressed in a separate Board decision.)

FINDING OF FACT

In February 2008, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision that, in pertinent part, affirmed the Board's March 23, 2006, decision as to the issue of entitlement to service connection for a left leg condition.

CONCLUSION OF LAW

As the Court, in its February 2008 Memorandum Decision, affirmed the Board's March 23, 2006, decision as to the issue of entitlement to service connection for a left leg condition, the Veteran's motion for reversal or revision based on CUE is dismissed as moot.  38 U.S.C. § 7111 (2012); 38 C.F.R. § 20.1400 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, who is the moving party, served in the Arkansas National Guard from July 1975 to May 1976.

This matter is currently before the Board on the moving party's January 28, 2020 motion for revision or reversal on the grounds of CUE in the March 23, 2006, Board decision that denied entitlement to service connection for a left leg condition.

The Veteran testified at a January 2020 Board videoconference hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is associated with the claims file.

In July 2020, the Veteran properly appointed Rex E. Moore, accredited agent, as his new representative, thereby revoking his previous representative, Paul C. Bunn, accredited agent.  See 38 C.F.R. § 14.631(f)(1). 

Whether there was CUE in the March 23, 2006, Board decision that denied entitlement to service connection for a left leg condition.

In a March 23, 2006 decision, the Board denied entitlement to service connection for a left leg condition.  The Veteran appealed this decision to the Court.  

In a February 2008 Memorandum Decision, the Court, affirmed the Board's March 23, 2006 decision as to the issue of entitlement to service connection for a left leg condition.  The Veteran did not appeal this decision.

Thus, the Board's March 23, 2006, decision that denied entitlement to service connection for a left leg condition, was clearly affirmed by the Court in February 2008, and this decision is not subject to revision by the Board.  In essence, the Court's opinion replaces the Board decision regarding this issue, and thus, there is no Board decision available for revision.  See 38 C.F.R. § 20.1400; see Winsett v. Principi, 341 F.3d 1329, 1331 (Fed. Cir. 2003) (holding that the Board, as a lower tribunal, may not review the decision of a higher tribunal under guise of correcting CUE).

Given the Court's February 2008 affirmance, there is no longer a controversy regarding the issue of whether there was CUE in the March 23, 2006, Board decision that denied entitlement to service connection for a left leg condition.  Accordingly, the Board does not have jurisdiction to adjudicate the merits of the CUE motion and it is dismissed.

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Thomas, 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.