(a) A decision on a motion filed by a party or initiated by the Board pursuant to this subpart will be stamped with the date of mailing on the face of the decision, and is final on such date. The party and his or her representative, if any, will be provided with copies of the decision.
(b) For purposes of this section, a dismissal without prejudice under Rule 1404(a)(§ 20.1404(a) of this part), Rule 1404(b)(§ 20.1404(b)), or Rule 1404(f)(§ 20.1404(f)), or a referral under Rule 1405, paragraph (d) (§ 20.1405(d) of this part) is not a final decision of the Board.
(c) Once there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error. Subsequent motions relating to that prior Board decision on that issue shall be dismissed with prejudice.
(d) Chapter 72 of title 38, United States Code (relating to judicial review), applies with respect to final decisions on motions filed by a party or initiated by the Board pursuant to this subpart.
(Authority: 38 U.S.C. 501(a); Pub. L. 105-111)
[64 FR 2139, Jan. 13, 1999, as amended at 66 FR 35903, July 10, 2001; 84 FR 193, Jan. 18, 2019]
Notes of Decisions
Livesay v. Principi, 15 Vet. App. 165 (Vet. App. 2001).
· cites it 4× “The Court notes that the Board cited to 38 C.F.R. § 20.1409 (c) in denying the appellant’s CUE motions with respect to both the 1985 and 1987 BVA decisions.”
Garcia v. Wilkie, 908 F.3d 728 (Fed. Cir. 2018).
· cites it 6× “On that basis, the Veterans Court ruled that a governing regulation, 38 C.F.R. § 20.1409 (c), as construed in governing precedent, "requires that all possible errors in a final Board decision be raised at the time a motion for revision of that Board decision based on CUE is…”
Michael W. Canady v. R. James Nicholson, 20 Vet. App. 393 (Vet. App. 2006).
· cites it 14× “1404 (b) without prejudice to refiling, this type of dismissal is designated as "not a final decision of the Board" by 38 C.F.R. § 20.1409 (b). Inasmuch as the Court's jurisdiction generally is over only "final" Board decisions,1 see 38 U.”
Simmons v. Principi, 17 Vet. App. 104 (Vet. App. 2003).
· cites it 3× “The Federal Circuit further noted that, pursuant to 38 C.F.R. § 20.1409 (c) (2000), once there is a final decision on a CUE claim on a particular issue, the prior Board decision being collaterally attacked “ ‘on that issue is no longer subject to revision on the grounds of…”
Hillyard v. Dept. Of Vets. Affairs, 695 F.3d 1257 (Fed. Cir. 2012).
· cites it 4× “Hillyard’s second request for revision as barred by 38 C.F.R. § 20.1409 (e). For the reasons set forth below, we affirm.”
Disabled Am. Vets. v. Gober, 234 F.3d 682 (Fed. Cir. 2000).
· cites it 6× “1404 (b) is invalid because, in conjunction with the rule codified at 38 C.F.R. § 20.1409 (c), it operates to prevent Board review of any CUE claim that is the subject of a motion that is denied for failure to comply with the filing and pleading requirements of the rule codified…”
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
“See 38 C.F.R. § 20.1409 (c) (“Once there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error.”
Corson v. McDonald, 662 F. App'x 954 (Fed. Cir. 2016).
· cites it 3× “On appeal, this court likewise affirmed, explaining that under 38 C.F.R. § 20.1409 (c) “once the Board renders a final decision on CUE, a claimant is prohibited from challenging that CUE determination on the same basis.”
Cardiosom, L.L.C. v. United States, 115 Fed. Cl. 761 (Fed. Cl. 2014).
“relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error” 38 C.F.R. § 20.1409 (c) (emphasis added).”
B & H Med., LLC v. United States, 116 Fed. Cl. 671 (Fed. Cl. 2014).
“relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error” 38 C.F.R. § 20.1409 (c) (emphasis added).”
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