Citation Nr: 18900012

Decision Date: 08/15/18 Archive Date: 08/15/18

DOCKET NO. 180613-33

DATE: August 15, 2018

Whether there was clear and unmistakable error (CUE) in a November 2016 rating decision that denied service connection for mandibular hypoplasia is dismissed without prejudice.

The Veteran’s October 2017 claim alleging CUE in a November 2016 rating decision was filed before that decision became final.

Because the pleading requirements for revision of the November 2016 rating decision based on CUE have not been met, this issue must be dismissed without prejudice to refiling. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105 (a); Simmons v. Principi, 17 Vet. App. 104 (2003).

The appellant is a Veteran who served on active duty from April 2010 to August 2016.
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law, which is expected to go into effect in February 2019, creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in BEAAM, the Board Early Applicability of Appeals Modernization research program. This decision has been written consistent with the new AMA framework.

Whether there was CUE in a November 2016 rating decision that denied service connection for mandibular hypoplasia.
A November 2016 rating decision denied the Veteran service connection for mandibular hypoplasia. The Board notes that the original copy of the rating decision that was mailed to the Veteran was returned as undeliverable, but a November 2016 Report of General Information suggests another copy was mailed to the Veteran’s new address.
In October 2017, the Veteran’s representative submitted a claim that alleged the November 2016 denial of service connection for mandibular hypoplasia involved CUE.
Under 38 C.F.R. § 3.105, previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of CUE (emphasis added). Where evidence establishes such error, the prior decision will be reversed or amended.

It has been held that 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. A claim for benefits based on CUE in a prior final decision entails special pleading and proof requirements. Fugo v. Brown, 6 Vet. App. 40 (1993).

To initiate a request for revision, a claimant must file a CUE motion that collaterally attacks a final decision by an RO or the Board. See Cacciola v. Gibson, 27 Vet. App. 45 (2014) (citing Disabled Am. Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000)). The proper remedy for an inadequately pled CUE claim is dismissal without prejudice. See Simmons v. Principi, 17 Vet. App. 104, 114 (2003).

In this matter, VA received the Veteran’s claim alleging CUE in the November 2016 rating decision in October 2017, less than a year after a copy of that decision was mailed to the Veteran. The CUE claim was, therefore, filed before the rating decision became final. See 38 C.F.R. § 20.302. Accordingly, the October 2017 CUE claim must be dismissed without prejudice to refiling.
The Board considered whether the representative’s October 2017 statement could be considered a notice of disagreement (NOD) with the November 2016 rating decision, but the submission was not made on VA’s standardized NOD form (VA Form 21-0958) that was provided along with the rating decision and cannot be considered a valid NOD. See 38 C.F.R. § 20.201 (from March 24, 2015).
(Continued on the next page)

The Veteran submitted evidence during a period of time when the record was closed and therefore, the Board may not consider this evidence. The Veteran may submit this evidence, along with a supplemental claim, and VA will make another decision on the claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a supplemental claim are included with this decision.

A.J. Spector
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel

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