Citation Nr: 25003345
Decision Date: 03/10/25	Archive Date: 03/10/25

DOCKET NO. 190207-3643
DATE: March 10, 2025

ORDER

The motion to revise a March 13, 2023, Board decision on the basis of clear and unmistakable evidence (CUE) is dismissed.

FINDING OF FACT

The Veteran's motion alleged CUE in a March 13, 2023, Board remand, which was not a final decision of the Board.

CONCLUSION OF LAW

The March 13, 2023, Board remand is a non-final, preliminary order, which cannot be revised based on CUE. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1100, 20.1400, 20.1404.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, who is the moving party, served on active duty in the Army from October 1975 to September 1979.

In his January 16, 2025, Motion, the Veteran argues that there was CUE in the March 2023 Board decision which remanded the issues of entitlement to service connection for a spine disorder, traumatic brain injury, left knee disorder, right knee disorder, and right lower extremity varicose veins. The Board notes that a prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-20.1411. All final Board decisions are subject to revision on the basis of CUE, except for those decisions which have been appealed to and decided by the CAVC and decisions on issues which have subsequently been decided by the CAVC. 38 C.F.R. § 20.1400.

A remand is in the nature of a preliminary order and does not constitute a final decision of the Board. 38 C.F.R. § 20.1100(b). Here, the Veteran is alleging CUE in a non-final Board remand. The Board's March 2023 remand made no final decisions on any issues, but rather remanded the entire matter (five issues) for additional development. 

As that remand is not a final Board decision for purposes of CUE, it cannot be subject to revision based on CUE. See 38 C.F.R. § 20.1100(b); see also Acosta v. Principi, 18 Vet. App. 53 (2004); Breeden v. Principi, 17 Vet. App. 475 (2004). Consequently, to the extent the Veteran's January 2025 filing with the Board could be interpreted as a CUE motion, that CUE motion is dismissed. See 38 C.F.R. § 20.1404; Simmons v. Principi, 17 Vet. App. 105 (2003).

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Finally, to the extent that the Veteran wishes to raise the issue of whether a prior final rating decision was based on CUE, the Board may not adjudicate the question of whether CUE existed in a prior rating decision before that specific matter has been adjudicated first by the AOJ in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326 (2006). Accordingly, the Veteran is invited to reach out to the AOJ to ensure that any pending CUE motion is addressed.

 

 

ANTHONY C. SCIRÉ, JR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. B. Kucera

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.