The opinion
HOLDAWAY, Judge,
concurring:
In requesting en banc review, the appellant, inter alia, argues that the “panel” erroneously relied on evidence that was not in the record. Briefly, this was a recitation in the Court’s opinion of matters that the 1989 Board of Veterans’ Appeals (BVA or Board) decision described as evidence it had considered. . Since appellant’s argument seriously miseharacterizes the opinion of this Court, I feel it appropriate as the author of the opinion to respond.
It is clear, or should be clear, from a reading of the entire opinion that the Court did not “rely” on the BVA’s summary of the evidence in any sense of the word, but was merely relying on a description of the evidence which the Board in 1989 said it relied on. Since one of the principal allegations of clear and unmistakable error (CUE) was the putative failure of the BVA to consider certain evidence, a mere recitation from the decision describing the evidence it considered is hardly reliance by this Court on the substance of that evidence.
In short, the only “evidence” this Court relied on was the 1989 BVA decision itself (which was in the record) describing the evidence it had considered. There was no weighing, evaluation, consideration, “reliance” if you will (nor could there have been, Russell v. Principi, 3 Vet.App. 310 (1992) (en bane)), on this “evidence” qua evidence, but merely recognition of the fact that the Board had described such evidence as it had considered. Of course, if appellant or his attorneys believe that the Board in the 1989 decision did not accurately describe all the evidence it says it considered or did not consider it at all, and have some evidence proving such a contention, then a proper claim of CUE may be in order.
In view of Judge Steinberg’s dissenting statement, I feel compelled to also answer the appellant’s argument that the opinion impermissibly creates a “two-step” pleading and is contrary to precedent of this Court. If by “two step” pleading it is meant that there is a higher threshold for raising CUE in a BVA decision not subject to our review than there is for raising a garden variety error in a BVA decision subject to our review then undoubtedly appellant is correct. There is, necessarily, a more stringent requirement. In this respect the Fugo case conforms entirely to past precedent and merely makes explicit what those past eases perhaps implied. Pleading and proof are two sides of the same coin. If there is a heightened proof requirement, there is, a fortiori, a heightened pleading requirement. For example, in a civil case, if one wishes to prove willful misconduct as opposed to negligence then obviously the pleading required (the allegation of facts and accompanying argument necessary to raise the issue) has a higher and more rigorous threshold. The same is true of CUE. The Secretary’s own definition raises an extremely high threshold, clear and unmistakable, i.e., beyond any reasonable dispute. Moreover, it is a collateral attack on a final decision, thus the strong presumption of validity must be overcome. It would be strange, indeed, if there was not a more stringent requirement for the standard necessary to raise such a rare kind of error. That is all the opinion said, whatever the appellant chooses to “read into” it. The opinion is entirely consistent with past precedent.