Finality and Revision of Decisions
Where a claimant does not file a Notice of Disagreement, the benefit decision becomes final. 38 U.S.C. § 7105(c). When a prior adjudication is final, a claimant may only seek a revision of that decision on the basis of clear and unmistakable error. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a) (2009); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). In order to properly seek revision of a prior final decision, the appellant must allege either (1) that the correct facts in the record were not before the adjudicator or (2) that the statutory or regulatory provisions in existence at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see 38 U.S.C. § 7111 (authorizing revision of Board decisions); Cook, 318 F.3d at 1342 n.2 (noting that, before the enactment of section 7111, final Board decisions were not subject to motions for revision based on CUE).
The only exceptions to the rule of finality are the statutory provisions concerning CUE and the section 3.156(c) regulation described above. See 38 U.S.C. § 5109A (revision of decisions by the Secretary, including rating decisions, on the grounds of CUE); 38 U.S.C. § 7111 (revision of Board decisions on the grounds of CUE). Both provisions state that a revision of a prior decision on the basis of CUE has the same effect as if the corrected decision had been made on the date of the prior decision. The Court has defined CUE as follows:
Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied …. [CUE is] the sort of error which, had it not been made, would have manifestly changed the outcome … [an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.
Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting “manifestly changed the outcome” language in Russell). In order to constitute CUE, the alleged error must be “based upon the evidence of record at the time of the original decision.” Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc). A claimant alleging CUE must do so “with some degree of specificity.” Pierce v. Principi, 240 F.3d 1348, 1355 (Fed. Cir. 2001).
A challenge to a regional office decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of that decision, beginning with the timely filing of a Notice of Disagreement. See 38 U.S.C. § 7105(a). Where a claimant does not file a Notice of Disagreement, the regional office’s decision becomes final. 38 U.S.C. § 7105(c). Once a regional office decision is final, a claimant may attempt to overcome the finality of that decision in one of two ways: by a request for revision of the decision based on clear and unmistakable error or by a request to reopen based upon new and material evidence. Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see 38 U.S.C. § 5109A(a) (“A decision by the Secretary … is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.”); 38 U.S.C. § 5108 (“If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of that claim.”).
Only a request for revision based on CUE or a newly discovered service record can result in the assignment of an earlier effective date for the award of disability benefits because the effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received. 38 U.S.C. § 5110(a); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”). Further, the Court has made it clear that VA cannot adjudicate, a freestanding claim for an earlier effective date because to do so would be to compromise the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006).
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