Exceptions: A decision may be amended on the same factual basis by RO employees as follows upon de novo review of a timely notice of disagreement (NOD) as provided by when there is difference of opinion authority when permitted by , or when there is clear and unmistakable error (CUE) as provided by . c. Finally Adjudicated Claims A finally adjudicated claim is defined in . It refers to the status of an award or denial of benefits when either the appeal period has expired without an appeal being initiated, or an appeal is initiated and denied on appellate review. d. Final and Binding but not Finally Adjudicated Claims A claim that has not been finally adjudicated (which includes claims where a final and binding decision has been issued but the appeal period has not expired) is still considered a pending claim under . Reference: For more information on reconsideration and new and material evidence in the appeal period, see M21-1, Part III, Subpart ii, 2.F. e. Revising Final and Binding Decisions Use the table below if revising a prior decision that is final and binding as defined in M21-1, Part III, Subpart iv, 2.B.1.a to determine which revision authority(ies) can be applied. If… Then the decision may be revised… the Veteran filed a timely NOD, and elected de novo review in a timely manner by a Decision Review Officer (DRO) on the same evidentiary basis under de novo review authority, or when CUE is identified, or when new and material evidence is submitted or developed after the prior decision. the Veteran filed a timely NOD, and did not elect de novo review (or did not make a timely election) by a DRO or other appropriate decision maker as assigned by division management on the same evidentiary basis based on a difference of opinion, if approved by VA Central Office (VACO), or when a CUE is identified, or when new and material evidence is submitted or developed after the prior decision.
a decision has been affirmed by BVA does not have jurisdiction to review the claim for a CUE determination Rationale: The RO does not have jurisdiction to consider a claim of CUE in a decision that has been subsumed by a BVA decision. notifies the claimant that the RO does not have jurisdiction to review the claim for a CUE determination of his/her appellate rights, and that he/she should file a motion for reconsideration by BVA, if a review at that level is desired. the decision was not appealed, but a later reopened claim was followed by a BVA affirmance does not have jurisdiction to review the claim for a CUE determination Rationale: The General Counsel has concluded that the RO does not have jurisdiction to consider a CUE claim where BVA has reviewed the entire record of the claim following reopening, and denied the benefits previously denied in the unappealed decision. notifies the claimant that the RO does not have jurisdiction to review the claim for a CUE determination of his/her appellate rights, and that he/she should file a motion for reconsideration by BVA, if a review at that level is desired. Note: All SOCs for appeals in which the issue on appeal involves a prior unappealed RO decision, followed by a claim to reopen the claim that was decided by BVA, should contain a citation to . the decision was not appealed, and a subsequent BVA decision merely concludes that new and material evidence sufficient to reopen a prior unappealed RO decision has does have jurisdiction to review the claim for a CUE determination Rationale: The BVA decision does not bar a claim of CUE in the prior unappealed RO decision. The General Counsel has concluded that when BVA determines that evidence sufficient to reopen has not been submitted, it does not reviews the unappealed decision for CUE.
not been submitted, and denies reopening decide the merits of the issues raised in the claim. the allegation of CUE involves an issue that has not been affirmed by a BVA decision does have jurisdiction to review the claim for a CUE determination reviews the unappealed decision for CUE. b. Finality of BVA Decisions Unless overruled by the CAVC, BVA decisions are final and binding on the Veterans Benefits Administration decision makers, but only with regard to the specific case decided. Appellants disagreeing with BVA’s decision on his/her appeal may file an appeal with CAVC a motion asserting CUE with BVA, or a motion for reconsideration with BVA. Notes: In the absence of new and material evidence, ROs do not have the authority to award a benefit denied by a BVA decision. A motion for reconsideration of a BVA decision is not a claim; therefore, the motion does not need to be submitted to BVA on a prescribed form. References: For more information on BVA decisions, see M21-1, Part I, 5.G.1 the non-precedential value of BVA decisions, see what to do with a communication from the appellant or his/her representative that disagrees with a BVA decision, see M21-1, Part I, 5.G.2.f, and filing a motion for reconsideration, see , and M21-1, Part I, 5.G.2.d.