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.