Citation Nr: 25001094
Decision Date: 01/28/25	Archive Date: 01/28/25

DOCKET NO. 18-27 656
DATE: January 28, 2025

ORDER

The appeal concerning entitlement to a disability rating in excess of 20 percent for residuals, compression fracture, thoracic spine, with deformity of vertebral bodies, on the basis of clear and unmistakable error, is dismissed.

FINDING OF FACT

On August 15, 2024, the United States Court of Appeals for Veterans Claims vacated the April 5, 2023, decision of the Board of Veterans' Appeals in this appeal finding that the Board of Veterans' Appeals lacks jurisdiction to consider it.

CONCLUSION OF LAW

The Board of Veterans' Appeals lacks jurisdiction to consider the Veteran's April 2015 motion to revise the July 2008 rating decision based on clear and unmistakable evidence because the challenged decision was not final, but, rather, it was subsumed by the January 2011 decision of the Board of Veterans' Appeals. 38 C.F.R. § 3.105(a). 

REASONS AND BASES FOR FINDING AND CONCLUSION

On July 22, 2024, the Veteran and his attorney, joined by the Secretary of Veterans Affairs, submitted to the United States Court of Appeals for Veterans Claims (Court) a Joint Motion to Vacate the April 5, 2023 decision of the Board of Veterans' Appeals (Board) in this matter.  The parties asserted, and the Court agreed, that the Board lacks jurisdiction to consider this appeal because the decision that the Veteran seeks to revise on the basis of clear and unmistakable error (CUE) was not final.  Rather, the July 2008 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) was subsumed by a Board decision in January 2011.  While the Court's order did not remand the matter back to the Board, the Board infers from the Court's order that it should take final action to terminate the agency appeal.  Indeed, in June 2024, the Veteran's agency-recognized claims agent submitted a motion to revise the Board's previous decision on the issue of back disability rating.  The Board has docketed that matter separately and will address those contentions consistent with its original jurisdiction.  As for this matter, however, the Board lacks jurisdiction to consider a motion to revise the VA RO's July 2008 Rating Decision on the basis of CUE.  Consequently, this matter is dismissed. 

 

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Andrew Ledman II

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.