## Facts

- A Navy veteran sought service connection for a “nervous condition,” which a VA regional office (RO) denied in a 1956 rating decision.
- Decades later, the veteran filed a motion at the RO to revise the 1956 decision based on clear and unmistakable error (CUE), alleging a specific theory of error.
- The RO denied revision, and the veteran appealed to the Board of Veterans’ Appeals (Board).
- Before the Board, the veteran asserted both the original CUE theory and a new CUE theory not previously presented to the RO: that the RO failed to apply the presumption of soundness.
- The Board addressed and rejected both theories.
- On appeal to the Court of Appeals for Veterans Claims, the veteran pursued only the presumption-of-soundness CUE theory first raised at the Board.
- The Court heard the case en banc to determine whether the Board and the Court could consider a new CUE theory that had not been adjudicated by the RO.

## Issues

1. Whether the Board has jurisdiction to adjudicate, in the first instance, a new theory of CUE not previously presented to and decided by the RO.
2. Whether the Court has jurisdiction to review a Board decision on a CUE theory that was not properly within the Board’s jurisdiction because it was not first adjudicated by the RO.

## Decision

- The Court held that each distinct CUE theory constitutes a separate matter that must be presented to and adjudicated by the RO before appellate review.
- The Court held that the Board lacks jurisdiction to decide a new CUE theory in the first instance when the RO has not adjudicated that theory.
- Because the presumption-of-soundness CUE theory was not adjudicated by the RO, the Court concluded it lacked jurisdiction to review the merits of that theory.
- The Court dismissed the appeal as to the new CUE theory and indicated the proper course is referral to the RO for initial consideration.

## Legal Principles

- A request to revise a final VA decision based on CUE is a collateral attack requiring identification of the specific final decision and the specific alleged error.
- For jurisdictional purposes, different alleged CUE errors are distinct matters; a claimant must present each CUE theory to the RO in the first instance.
- The Board is an appellate tribunal whose jurisdiction is limited to matters properly on appeal from the agency of original jurisdiction; it may not adjudicate a new CUE theory in the first instance.
- The Court’s jurisdiction is limited to review of final Board decisions and is derivative of the Board’s jurisdiction; the Court cannot reach the merits of a theory the Board lacked authority to decide.

## Conclusion

The Court required issue exhaustion for CUE theories by holding that each CUE theory must first be adjudicated by the RO; neither the Board nor the Court may decide or review a new CUE theory raised for the first time on appeal, and the proper disposition is dismissal and referral to the RO.


Jarrell v. Nicholson, 20 Vet. App. 326 (2006)