Citation Nr: 21027330 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-05 079 DATE: May 5, 2021 ORDER The June 17, 2020, motion to revise a February 19, 2020, decision of the Board of Veterans' Appeals (Board) on the basis of clear and unmistakable error (CUE) is dismissed. FINDINGS OF FACT 1. A February 19, 2020, decision of the Board stated that the issue of the rating of painful scars was separately addressed by a Department of Veterans Affairs (VA) Regional Office (RO). 2. In May 2021, the Board issued a decision that vacated the portion of the February 2020 decision that stated that the RO had separately addressed the issue of painful scars. 3. At the time of the February 2020 Board decision, a VA RO had yet to act on the Veteran's underlying claim for an earlier effective date for painful scars. CONCLUSION OF LAW The criteria for dismissal of the June 2020 motion for revision of a February 2020 Board decision have been met. 38 U.S.C. § 7111; 38 C.F.R. § 20.1404. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, served on active duty from December 1998 to December 2006. This matter comes before the Board from the Veteran's June 2020 motion to revise a February 2020 decision of the Board. That decision found that a rating decision issued by a VA RO contained a clear and unmistakable error in assigning an initial rating for disfiguring scars to the face and granted an initial rating of 30 percent for that disability effective December 30, 2006. In its introduction, the February 2020 Board decision also indicated that in addition to the issue on appeal regarding a facial scar, the issue of the rating of a painful scar associated with the face was separately addressed by the RO and was therefore not on appeal. The Veteran then submitted his June 2020 motion to revise that decision. He challenged what he considered to be the Board's erroneous failure to consider the issue of painful scars. After the June 2020 CUE motion, the Board issued a May 2021 decision that included a partial vacatur of the February 2020 decision. The Board explained in the vacatur decision that it was only vacating the portion of that February 2020 decision that addressed the issue of painful scars. It clarified that no other portion of that decision was to be vacated, to include the portion of the February 2020 decision that granted an initial rating of 30 percent for disfiguring facial scar. In the vacatur decision, the Board acknowledged that it had not adjudicated in its February 2020 decision the issue of the effective date for a rating assigned to painful scars associated with the face. It clarified in the vacatur decision that although that issue had been raised by the Veteran, the RO had not yet addressed the issue of whether there had been a CUE in the initial rating of that disability, to include in the April 2019 rating decision that was on appeal before the Board in February 2020. The Board now turns to the motion for revision of the February 2020 decision that the Veteran submitted in June 2020. A motion for revision of a Board decision based on clear and unmistakable error must be in writing and must be signed by the moving party or that party's representative. The motion must include the name of the Veteran; the name of the moving party if other than the Veteran; the applicable Department of Veterans Affairs file number; and the date of the Board decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. 38 C.F.R. § 20.1404(a). In addition to those preliminary pleading requirements, a valid motion for revision of a Board decision based on clear and unmistakable error must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision; the legal or factual basis for such allegations; and why the result would have been manifestly different but for the alleged error. Nonspecific allegations of failure to follow regulations or failure to give due process, or any other general, nonspecific allegations of error, are insufficient to satisfy this requirement. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling. 38 C.F.R. § 20.1404(b). Here, the Veteran's June 2020 motion takes issue with the fact that the Board did not address in the February 2020 decision the effective date for a 20 percent rating under diagnostic code 7804 that had been assigned to his disfiguring scar to the face. However, as explained above, the portion of the February 2020 decision that referenced the issue of a painful scar has since been vacated by the Board. There remains no adjudication whatsoever in that decision regarding the issue of the propriety of any effective date for a 20 percent rating. Instead, the Board indicated in the vacatur decision that it was the RO that had jurisdiction of a pending claim relating to a painful scar rating. The United States Court of Appeals for Veterans Claims (Court) has clarified that CUE revisions are available when the decision that is the subject of the motion to revise is final. Bradley v. Peake 22 Vet. App. 280, 287 (2008). The adjudication of the motion to revise such a prior final Board decision must be done pursuant to 38 U.S.C. § 7111 and its implementing regulations at 38 C.F.R. § 20 subpart O. Id. Those regulations clarify that a final decision is one which is appealable under Chapter 72 of title 38 of the United States Code and further define "issue" as a matter upon which the Board made a final decision. As the Board explained in the May 2021 vacatur decision, no issue regarding a painful scar was adjudicated in the February 2020 Board decision. To the extent that the Veteran suggests that the Board has erred in failing to make such an adjudication, VA's regulations require him to provide a clear and specific allegation regarding the legal or factual basis for the alleged error and also explain how such an error resulted in a manifestly different outcome. The Board now finds that the brief statement received in June 2020 that the February 2020 decision erred in failing to address painful scars does not provide such a clear and specific allegation of a legal error, as is required by 38 C.F.R. § 20.1404(b). This is particularly the case in light of the partial vacatur decision from May 2021, which clarifies that the painful scar issue remained pending before the RO. The June 2020 motion did not include any explanation of how the Board erred in determining that the appeal remained pending with the RO. As such, the appropriate disposition of the June 2020 motion is to dismiss it without prejudice to refiling. (Continued on the next page) However, the Board would like to take this opportunity to emphasize the contents of the May 2021 partial vacatur decision. As the Board explained in that decision, the issue of the effective date of a rating for a painful scar remains unaddressed by the Agency of Original Jurisdiction (AOJ). The Veteran is encouraged to resubmit his claim regarding whether there was CUE in a prior RO rating decision regarding the rating of that disability or to notify the AOJ that that issue remains pending. He will then have the opportunity to have the AOJ make an initial adjudication of that issue in the first instance and, if he is dissatisfied, he may appeal that decision to the Board. For the foregoing reasons, the Board dismisses the June 2020 CUE motion without prejudice to refiling. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.