Guadalupe Lopez, Jr., a veteran, sought service connection for coronary artery disease and headaches following his discharge from the Marine Corps. In July 2020, the Board of Veterans' Appeals granted service connection for coronary artery disease but denied a higher disability rating and remanded the headache claim for further fact-finding. Lopez appealed this order to the Court of Appeals for Veterans Claims, which affirmed the Board's decision in November 2021. After the Federal Circuit dismissed Lopez's subsequent appeal for lack of jurisdiction, he filed a motion with the Board asking it to revise its July 2020 order based on clear and unmistakable error. The Board dismissed this motion, concluding that the prior Veterans Court affirmance precluded CUE review for the coronary artery disease claim and that the remand on the headache claim was not a final order subject to revision. The Veterans Court affirmed the Board's dismissal, and Lopez appealed to the Federal Circuit.
The Federal Circuit addressed two primary legal questions. First, regarding the coronary artery disease claim, the court rejected Lopez's argument that regulations allowing the reopening of claims or the filing of supplemental claims based on new evidence (38 C.F.R. § 3.156 and 38 U.S.C. § 5108) permitted a revision of the Board's order. The court clarified that these provisions authorize the reopening or readjudication of a claim, not the revision of an order that has already been affirmed by a court. Citing 38 C.F.R. § 20.1400(b)(1), the court held that decisions on issues appealed to and decided by a court are excepted from revision. The court reasoned that allowing a lower tribunal to review a decision of a higher tribunal after affirmance would be illogical. Second, regarding the headache claim, the court agreed with the Veterans Court that a remand order is not a 'final' decision. Because 38 C.F.R. § 20.1400(b) only permits revision of 'final Board decisions,' the Board correctly dismissed the motion to revise the non-final remand order.
The original Board orders from July 2020 and the Veterans Court's affirmance remain in full force. Veterans cannot use a motion for clear and unmistakable error to revisit Board orders that have already been affirmed by the Veterans Court, even if they possess new evidence. Additionally, veterans cannot seek revision of remand orders, as these are not considered final decisions. The decision clarifies the strict finality requirements for CUE motions and limits the avenues for reopening cases that have already undergone judicial review.
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