Citation Nr: 21027341 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-31 912 DATE: May 5, 2021 REMANDED Entitlement to revision of a March 30, 2010, rating decision that assigned an effective date of December 1, 2009, for an award of total disability based on individual unemployability (TDIU) on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from December 1974 to January 1980. The Veteran received a general discharge under honorable conditions. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a July 2015 decision, the Board denied the Veteran's motion for revision of a March 2010 rating decision on the basis of CUE. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). A March 2017 memorandum decision of the Court set aside and remanded the July 2015 decision. The Court held that the Board had erred in failing to address whether an April 2010 statement from the Veteran could have been construed as both a notice of disagreement (NOD) and a substantive appeal. The Court further indicated that, pursuant to Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006), the Board did not have jurisdiction over the CUE claim. Upon return of the appeal, the Board, in a January 2018 decision, found that a timely substantive appeal was not filed to a March 30, 2010, rating decision assigning an effective date of December 1, 2009 for the grant of a TDIU; that the Board did, in fact, have jurisdiction over the issue of CUE in a March 30, 2010, RO rating decision that granted a TDIU and assigned an effective date of December 1, 2009; and found no CUE in the March 30, 2010 RO rating decision. The Veteran appealed the Board's decision to the Court. In a November 2018 Order, the Court granted a Joint Motion for Partial Remand (JMPR), which dismissed the timely substantive appeal issue and remanded the question of CUE in a March 30, 2010, RO rating decision to assign an effective date of December 1, 2009 for TDIU. The parties agreed that the Board erred, pursuant to Jarrell, when it found that all of the Veteran's theories of CUE had been adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ). Pursuant to the JMPR, the Board, in May 2019, remanded the issue of CUE in a March 30, 2010, rating decision that granted a TDIU and assigned an effective date of December 1, 2009, for initial adjudication by the RO of all of the Veteran's CUE theories. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. In June 2020, the RO denied the Veteran's motion for revision of a March 30, 2010, rating decision in a Supplemental Statement of the Case (SSOC). However, an SSOC cannot serve to announce decisions on issues in the first instance. 38 C.F.R. § 19.31(a). As such, another remand is warranted. The matters are REMANDED for the following action: 1. Issue a rating decision to adjudicate the claim of CUE in a March 2010 rating decision that assigned an effective date of December 1, 2009 for an award of a TDIU. If adverse, the Veteran must be informed of his appellate rights with respect to the decision. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.