Opinion

Berger v. Brown

  • 10 Vet. App. 166
  • 1997 U.S. Vet. App. LEXIS 257
  • 1997 WL 131952
Court
United States Court of Appeals for Veterans Claims
Filed
Mar 21, 1997
Status
Published
Author
Kramer
On the bench
Farley, Holdaway, Kramer
Cited by
29 cases
Authority
More cited than 6.4%

stating that "the appellant . . . always bears the burden of persuasion on appeals to this Court"

How later courts described this case

  • stating that "the appellant . . . always bears the burden of persuasion on appeals to this Court"
  • holding that, on appeal to this Court, the appellant "always bears the burden of persuasion"
  • ”[T]he appellant, who always bears the burden of persuasion on appeals to this Court, bears an extra-heavy burden when the appeal is a collateral attack, in the form of a CUE [motion].... A final decision is entitled to a strong presumption of validity.”
  • "To the extent that the attack on a final decision is based on a disagreement with how the adjudicator weighed the facts, then it cannot constitute CUE."

Written by the judges who cited it.

The opinion

KRAMER, Judge,

concurring:

I disagree with the majority’s questioning of the meaning and application of Gregory v. Brown, 5 Vet.App. 108 (1993). Its meaning is clear and requires no interpretation. Simply put, Gregory precludes VA from denying surviving spouse status on the basis of post-separation fault unrelated to the reason for separation. The Gregory rule applied to the facts of this case today would result in the appellant’s prevailing.

That said, the majority’s construction of 38 C.F.R. § 3.105 is correct in that the language of section 3.105 precludes the retroactive application of Gregory . Without Gregory , VA’s prior use of post-separation fault unrelated to the reason for separation was “substantially justified” and “reasonable in law” (see Stillwell v. Brown, 6 Vet.App. 291, 304 (1994)) and thus, by definition, could not constitute CUE.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.