discussing § 3.105(d)’s clear and unmistakable error (CUE) provisions in juxtaposition with the Russell criteria concerning § 3.105(a), including the requirement that a determination of CUE be based upon “the record and the law that existed at the time of *343 the prior decision”
How later courts described this case
- discussing § 3.105(d)’s clear and unmistakable error (CUE) provisions in juxtaposition with the Russell criteria concerning § 3.105(a), including the requirement that a determination of CUE be based upon “the record and the law that existed at the time of *343 the prior decision”
- holding that CUE is defined *479 the same under 38 C.F.R. § 3.105(d) as it is under § 3.105(a)
- holding that CUE is defined the same under 38 C.F.R. § 3.105 (d) as it is under § 3.105(a)
- “This Court has held that if the Board relies upon evidence developed after the most recent Statement of the Case ... it must provide a claimant with reasonable notice of the evidence, the reliance to be placed upon that evidence, and a reasonable opportunity to respond to the evidence.” (citing Thurber, 5 Vet.App. at 126)
Written by the judges who cited it.
The opinion
KRAMER, Judge,
dissenting:
There are three bases for the severance of service connection: (1) clear and unmistakable error (CUE) in a prior determination, pursuant to 38 C.P.R. § 3.105(a), (d) (1993); (2) change in diagnosis in light of all accumulated evidence indicating that the diagnosis on which service connection was predicated is clearly erroneous, pursuant to 38 C.F.R. § 3.105 (d); and (3) fraud, pursuant to 38 C.F.R. § 3.957 (1993). In its decision severing service connection, the Board of Veterans’ Appeals (BVA) concluded that the October 1986 Regional Office (RO) determination granting service connection was predicated upon CUE. In reaching that conclusion, the BVA extensively reweighed facts without analyzing the prior determination and simply concluded that “[t]he record is clear that veteran’s current back problems began with his postservice injury.” Oliver G. Graves, BVA_-_, at 8 (Jan. 3, 1992). However, in Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc), the Court specifically precluded this approach by stating that “a disagreement as to how the facts were weighed or evaluated” was insufficient to support a CUE determination.
In Russell, supra, at 313-14 , this Court formulated a three-pronged test to determine the presence of CUE in a prior determination: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied;” (2) CUE must be the sort of error which, had it not been made, “would have manifestly changed the outcome at the time it was made;” and (3) a determination that there was CUE must be based on the record and the law that existed at the time of the prior decision. As the BVA decision was rendered prior to the Court’s decision in Russell, supra, the CUE test formulated in that case was not applied. Nevertheless, the failure to apply this test cannot be obviated. See Karnas v. Derwinski, 1 Vet.App. 308 (1991).
The majority suggests that because the 1986 RO determination did not include a history of a back injury in 1979, this informa *173 tion might not have been known to the adjudicator. However, this failure to recite history is irrelevant because the RO clearly knew of the 1979 injury, as this information was contained in a VA medical examination report dated prior to the RO decision. R. at 96. As the correct facts were before the adjudicator, CUE cannot be sustained on the basis of the majority’s conjecture.
I would remand for proceedings consistent with the above analysis.