# Berger v. Brown

> United States Court of Appeals for Veterans Claims · March 21, 1997 · 10 Vet. App. 166

URL: https://www.frixlaw.com/law-library/cases/8167210

## Case

- **Full name:** Ailean BERGER v. Jesse BROWN, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** March 21, 1997
- **Citations:** 10 Vet. App. 166; 1997 U.S. Vet. App. LEXIS 257; 1997 WL 131952
- **Precedential status:** Published
- **Opinion:** Concurrence by Kramer
- **Judges:** Farley, Holdaway, Kramer
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8167210

## How later opinions describe it (automated extraction)

- 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"

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8167210. Public record. Not legal advice.