200629-94461

• Court: Board of Veterans' Appeals
• Decided: September 30, 2020
• Docket: 200629-94461
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 09/30/20 Archive Date: 09/30/20

DOCKET NO. 200629-94461 DATE: September 30, 2020

ORDER

Whether the July 1999 rating decision denying reopening a claim for service connection for an acquired psychiatric disorder should be revised or reversed on the grounds of clear and unmistakable error (CUE) is dismissed.

FINDING OF FACT

The July 1999 rating decision was not final.

CONCLUSION OF LAW

A motion to revise a nonfinal rating decision on the basis of CUE cannot be adjudicated for lack of ripeness. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 3.105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1968 to June 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

Whether the July 1999 rating decision denying reopening a claim for service connection for an acquired psychiatric disorder should be revised or reversed on the grounds of CUE.

All final RO rating decisions are subject to revision on the basis of CUE based on the evidence of record. 38 U.S.C. § 7105. A valid CUE motion can only be made as to a final rating decision. See 38 C.F.R. § 3.105(a).

A request for revision on the basis of CUE cannot lie as to a prior decision that is still open to direct review. Palmer v. Nicholson, 21 Vet. App. 434, 438 (2007). In a separate decision pertaining to the direct appeal of entitlement to an earlier effective for service connection for a psychiatric disorder, the Board found the claim adjudicated in the July 1999 rating decision had not been finally decided and awarded an effective date of April 1, 1999, the benefit sought via the CUE motion. Thus, there is no final decision for the Board to review on the basis of clear and unmistakable error. There being no remaining question of fact or law within the Board’s jurisdiction, the Board dismisses the appeal. 38 U.S.C. § 7104.

J. B. FREEMAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board Jonathan M. Estes

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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.