Dittrich v. West
In Dittrich v. West, 11 Vet. App. 10 (1998), aff'd, 163 F.3d 1349 (Fed. Cir. 1998), cert. denied, U.S. 119 S.Ct. 1499 (1999), the veteran submitted a request for service connection for a nervous condition with the regional office ("RO") in 1960.
The RO denied this request and Mr. Dittrich did not timely appeal. He submitted new evidence after several years, which was treated as a request to reopen based on new and material evidence.
The RO denied the claim to reopen and, on appeal, the Board reopened his claim in 1969 but denied it on the merits. Mr. Dittrich later submitted a claim for clear and unmistakable error ("CUE") in the 1960 RO decision. The RO held there was no CUE and, on appeal, the Board held that in its 1969 decision had effectively reviewed the 1960 RO decision and therefore "subsumed" it because the 1969 decision had reviewed the entirety of the evidence before the RO in 1960 in addition to the new and material evidence.
The Court therefore held that the RO could not review the Board's 1969 decision, though Mr. Dittrich could collaterally attack the 1969 decision by bringing a claim for CUE at the Board level. Consequently, in Dittrich the Court reaffirmed the doctrine of delayed-subsuming.