context: Furthermore, a breach of the duty to assist in this case would not be an error of the sort that should be contemplated in the CUE analysis because the original RO decision in 1972 is not final for purposes of appeal. A claim of CUE is a collateral attack that can only be made on a final RO or Board decision, see id. at 1380-81, and generally, rating decisions by the VA are deemed "final and binding ... as to conclusions based on the evidence on file at the time the VA issues written notification" of a decision, 38 C.F.R. SS 3.104(a). In cases of grave procedural error, however, the Court of Appeals for Veterans Claims has consistently held that RO or Board decisions are not final for purposes of direct appeal.
citation_a.signal: see also
citation_a.identifier: 2 Vet.App. 307, 311
citation_a.parenthetical: holding that where the Board did not mail decision in accordance with the provisions of 38 U.S.C. SS 7104(e), the period within which to appeal to the Court of Appeals for Veterans Claims did not commence to run
citation_a.sentence: See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (concluding that “where VA has failed to procedurally comply with statutorily mandated requirements, a claim does not become final for purposes of appeal to the [Court of Appeals for Veterans Claims]”); Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (holding that where an appellant “never received notification of any denial ..., the one-year period within which to file an NOD, which commences with ‘the date of mailing of notice of the result of initial review or determination,’ did not begin to run”); Kuo v. Derwinski, 2 Vet.App. 662, 666 (1992) (stating that where an appellant and his representative had not properly been furnished with a Statement of the Case, the period in which to appeal the adjudicative determination in question never commenced to run and that determination was not final); see also Ashley v. Derwinski, 2 Vet.App. 307, 311 (1992) (holding that where the Board did not mail decision in accordance with the provisions of 38 U.S.C. § 7104(e), the period within which to appeal to the Court of Appeals for Veterans Claims did not commence to run). A breach of the duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency is a procedural error of, at least, comparable gravity that vitiates the finality of an RO decision for purposes of direct appeal.
citation_b.signal: see
citation_b.identifier: 2 Vet.App. 662, 666
citation_b.parenthetical: stating that where an appellant and his representative had not properly been furnished with a Statement of the Case, the period in which to appeal the adjudicative determination in question never commenced to run and that determination was not final
citation_b.sentence: See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (concluding that “where VA has failed to procedurally comply with statutorily mandated requirements, a claim does not become final for purposes of appeal to the [Court of Appeals for Veterans Claims]”); Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (holding that where an appellant “never received notification of any denial ..., the one-year period within which to file an NOD, which commences with ‘the date of mailing of notice of the result of initial review or determination,’ did not begin to run”); Kuo v. Derwinski, 2 Vet.App. 662, 666 (1992) (stating that where an appellant and his representative had not properly been furnished with a Statement of the Case, the period in which to appeal the adjudicative determination in question never commenced to run and that determination was not final); see also Ashley v. Derwinski, 2 Vet.App. 307, 311 (1992) (holding that where the Board did not mail decision in accordance with the provisions of 38 U.S.C. § 7104(e), the period within which to appeal to the Court of Appeals for Veterans Claims did not commence to run). A breach of the duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency is a procedural error of, at least, comparable gravity that vitiates the finality of an RO decision for purposes of direct appeal.