Citation Nr: A25041226 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 220124-213002 DATE: May 6, 2025 ORDER The issue of whether the March 31, 2021, rating decision, which assigned a 70 percent rating effective January 29, 2020, for service-connected traumatic brain injury (TBI)-posttraumatic stress disorder (PTSD), was the product of clear and unmistakable error (CUE) is dismissed. FINDINGS OF FACT 1. In a rating decision dated on March 31, 2021, and issued to the Veteran and his former service representative on April 1, 2021, the Agency of Original Jurisdiction (AOJ) assigned, in pertinent part, a 70 percent rating effective January 29, 2020, for service-connected TBI-PTSD (which it characterized as traumatic brain injury, posttraumatic stress disorder, and major depressive disorder). 2. The Veteran submitted a VA Form 20 0995, "Decision Review Request: Supplemental Claim," dated on September 20, 2021, and date-stamped as received electronically that same day by VA in which he essentially requested readjudication of an increased rating claim for TBI-PTSD. 3. In a statement dated on September 21, 2021, and included in the claims file, the Veteran asserted that the March 31, 2021, rating decision was the product of CUE; the AOJ interpreted submission of this form as relating back to the VA Form 20 0995 submitted 1 day earlier. 4. In a rating decision dated on December 28, 2021, and issued to the Veteran and his former service representative on December 30, 2021, the AOJ found, in pertinent part, that the March 31, 2021, rating decision, which assigned a 70 percent rating effective January 29, 2020, for service-connected TBI- PTSD, was not the product of CUE. 5. The Veteran filed a VA Form 10182, "Decision Review Request: Board Appeal (Notice Of Disagreement)," dated on January 24, 2022, and date-stamped as received electronically that same day by VA in which he identified the December 28, 2021, rating decision as the rating decision on appeal and also essentially contended that the March 31, 2021, rating decision, which assigned a 70 percent rating effective January 29, 2020, for service-connected TBI-PTSD, was the product of CUE. 6. The March 31, 2021, rating decision, which assigned a 70 percent rating effective January 29, 2020, for the service-connected TBI- PTSD, is not yet final; this renders the Veteran's CUE motion moot. CONCLUSION OF LAW Because the Veteran's CUE motion is moot, his appeal on the issue of whether the March 31, 2021, rating decision, which assigned a 70 percent rating effective January 29, 2020, for service-connected TBI-PTSD, was the product of CUE is dismissed. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.105(a), 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active U.S. Army service from February 1979 to October 1998. His medals include the Legion Of Merit. In September 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and essentially requested readjudication of his increased rating claim for TBI-PTSD most recently addressed in a March 2021 rating decision. In December 2021, the AOJ issued the supplemental claim decision on appeal which denied the Veteran's claim based on the evidence of record at the time of that decision. In the January 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board only may consider the evidence of record at the time of the December 2021 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. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is dismissing the claim listed above, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, then he may file a Supplemental Claim (VA Form 20 0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Veteran withdrew his power of attorney in favor of his former service representative in June 2022. Thus, he currently is unrepresented before VA. The Board notes that the Veteran identified the December 28, 2021, AMA rating decision as the rating decision on appeal in statements on his January 2022 VA Form 10182. He contended throughout the appeal period that the March 31, 2021, rating decision, which assigned a 70 percent rating effective January 29, 2020, for service-connected TBI-PTSD, was the product of CUE. The record evidence shows that he has pursued this CUE claim continuously since he filed a VA Form 20-0995 at the AOJ in April 2020 and requested readjudication of his increased rating claim for TBI-PTSD most recently addressed in a March 2021 rating decision. The record evidence shows that the September 2021 VA Form 20 0995 and the January 2022 VA Form 10182 were received within 1 year of the March 2021 rating decision. Thus, the Board finds that he has pursued his CUE claim continuously since April 2020 under the claims processing rules governing AMA claims. The Board also finds that the March 31, 2021, rating decision is the AMA rating decision on appeal under the claims processing rules governing AMA claims. See 38 C.F.R. § 3.2500(c). The Board next notes that the Veteran made multiple allegations of CUE in October 1999 and March 2000 rating decisions about the appropriate disability rating for service-connected TBI PTSD throughout the appeal period. These allegations of CUE are adjudicated in a separate AMA appeal docketed under AMA docket # 230308-330323. Having reviewed the record evidence, the Board finds that the claim on appeal should be characterized as stated above. The Veteran has not raised any other issues nor have any other issues been reasonably raised by the record, to include entitlement to an additional disability rating, an extraschedular rating for a service-connected disability, service connection for another disability as secondary to a service-connected disability, or to a total disability rating based on individual unemployability (TDIU). See Doucette v. Shulkin, 28 Vet. App. 366, 369 370 (2017) (confirming that Board not required to address issues unless specifically raised by claimant or reasonably raised by record evidence). The Board is persuaded that the appeal on the issue of whether the March 31, 2021, rating decision, which assigned a 70 percent rating effective January 29, 2020, for service-connected TBI- PTSD, was the product of CUE must be dismissed as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran essentially contends that the AOJ committed CUE in the March 31, 2021, rating decision when it assigned a 70 percent rating effective January 29, 2020, for his service-connected TBI-PTSD. The Board notes initially that a CUE claim only applies to decisions that are final. See 38 C.F.R. § 3.105(a). The Court has held consistently that a CUE claim "cannot lie as to a decision that is still open to direct review." See May v. Nicholson, 19 Vet. App. 310, 317 (2005). The Court also has held that a CUE claim cannot be filed as to a matter that is still appealable or pending. Id., at 320. As discussed in the Introduction, the Veteran has pursued his appeal continuously since April 2020 when he filed a VA Form 20 0995 at the AOJ seeking an increased rating for service-connected TBI-PTSD. See 38 C.F.R. § 3.2500(c). In other words, the Veteran's election to pursue this appeal continuously since April 2020 means that the March 31, 2021, rating decision is not yet final and is not properly the subject of a valid CUE motion. See May, 19 Vet. App. at 317, 320. The Board also notes that the Veteran presented the same arguments concerning his allegation of CUE with respect to the disability rating for service-connected TBI-PTSD in another AMA appeal docketed under AMA docket # 230308-330323. These arguments will be addressed by the Board in a separate AMA decision issued under that AMA docket. The Board finally emphasizes here that the predicate requirement for a valid CUE claim is that the prior rating decision challenged on the basis of CUE must be final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If the Veteran wants to challenge the March 31, 2021, rating decision on the basis of CUE, then he may choose to refile this CUE claim at the AOJ after that rating decision has become final. Having reviewed the record evidence, the Board concludes that the March 31, 2021, rating decision is not final with respect to the 70 percent rating effective January 29, 2020, for service-connected TBI-PTSD. Thus, the Veteran's CUE motion is moot and this appeal is dismissed. S. Sorathia Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.