Citation Nr: A25035158 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 211118-198215 DATE: April 16, 2025 ORDER The appeal seeking revision or reversal of the February 13, 1989 rating decision, on the basis of clear and unmistakable error (CUE), that denied service connection for a back injury is dismissed. FINDING OF FACT The February 13, 1989 rating decision that denied service connection for a back injury is subsumed by the May 1991 Board decision?that also denied service connection for a back injury. CONCLUSION OF LAW The claim of CUE in the subsumed February 13, 1989 rating decision regarding service connection for a back injury is dismissed. 38?U.S.C. §?7105;?38?C.F.R. §?20.1104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from September 1983 to August 1986. The Board is issuing two decisions concurrently with each other for Docket D 211118-198215 (CUE) and Docket H 210408-151359 (service connection issues). The Veteran's claim originates from an August 2021 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). The Veteran requested higher level review (HLR) of that decision and that denial was confirmed in a November 2021 HLR decision. In the November 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the August 2021 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Whether there was CUE in the February 13, 1989 rating decision that denied service connection for a back injury The Veteran was initially denied service connection for a back disability in a February 13, 1989 rating decision, based on findings that a back strain was acute and transitory while the Veteran had a development defect of spondylosis. The Veteran appealed that decision to the Board, which continued to deny the Veteran's claim through a May 1991 decision. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court) which affirmed the Board's decision in October 1982. In a June 2021 Motion to Revise Based on CUE, the Veteran alleged that the February 13, 1989 rating decision that denied service connection for a back injury contained CUE. CUE Law A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Once a decision becomes final, it may only be revised by a showing of CUE. 38?C.F.R. §§?3.104, 3.105. CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown,?6?Vet. App.?40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38?C.F.R. §?3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald,?27?Vet. App.?180, 185 (2014), aff'd,?642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown,?6?Vet. App.?242, 245 (1994); Russell v. Principi, 3?Vet. App.?310, 313-14 (1992). Subsuming RO decisions that are appealed to the Board become subsumed by the Board decision issued in that case. See Brown v. West,?203 F.3d 1378, 1381 (Fed. Cir. 2000). 38?C.F.R. §?20.1104. RO decisions that are not directly appealed to the Board may be subsumed by a later Board decision that addresses the same issue and the same factual basis, which is commonly referred to as delayed subsuming. Manning v. Principi,?16?Vet. App.?534, 541 (2002) ("[A] later BVA decision's delayed subsuming of an RO decision occurs only where the Board decided the same issue that the RO decided and where the RO decision and BVA review were based on the same factual basis"). The Board finds that the February 13, 1989 rating decision was subsumed by the May 1991 Board decision. The Board decision addressed the evidence at the time of the February 13, 1989 rating decision. Thus, the May 1991 Board decision addressed the same issue and same factual basis as the February 13, 1989 rating decision; thus, the Board finds there was a subsuming of the claim. The Board accordingly concludes that, for purposes of the CUE claim that is the subject of the present appeal, the February 13, 1989 rating decision is subsumed by the May 1991 Board decision. The Veteran is thus legally precluded from claiming CUE in the February 13, 1989 rating decision, and this appeal must be dismissed. Without opining on the merits of the Veteran's argument, should the Veteran desire to file another CUE claim, he is welcome to claim CUE on the May 1991 Board decision. Alternatively, he may file CUE on the July 2002 rating decision which found new and material evidence had not been submitted to reopen the Veteran's claim. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.