Manning v. Principi

This version includes the errata issued 26Dec02-e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 98-572

ROGER V. MANNING , APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE

On Appeal from the Board of Veterans' Appeals

(Decided December 19, 2002 )

Michael P. Horan, of Washington, D.C., was on the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Acting Assistant General Counsel;

Joan E. Moriarty, Deputy Assistant General Counsel; and Lydia L. Keyser, all of Washington, D.C.,

were on the brief for the appellee.

Before KRAMER, Chief Judge, and FARLEY and HOLDAWAY*, Judges.

FARLEY, Judge, filed the opinion of the Court. KRAMER, Chief Judge, filed an opinion

concurring part and dissenting in part.

FARLEY, Judge: Before the Court is the March 13, 1997, decision of the Board of Veterans'

Appeals (BVA or Board) that found that no clear and unmistakable error (CUE) claim under

38 C.F.R. § 3.105(a) existed as a matter law with respect to January 1981, September 1982, and

February 1984, rating decisions of the regional office (RO) because those decisions were subsumed

by a BVA decision dated in July 1990. This Court had dismissed this appeal in May 1998 for lack

of jurisdiction for failure to file a timely Notice of Appeal. The appeal was reinstated, however, in

April 1999, after the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reversed our

decision based upon Linville v. West, 165 F.3d 1382 (Fed. Cir. 1999). Manning v. West, No. 99-

*

Judge Holdaway participated in the decision on the merits of this case, but retired before

the decision could be published.

7010, 1999 WL 106192 (Fed. Cir. Feb. 5, 1999). For the reasons that follow, the Court will affirm

the decision of the Board.

I. BACKGROUND

The appellant served on active duty from January 1963 to January 1970, including a tour of

duty in Vietnam as a light weapons infantryman. Record (R.) at 145, 223. He received an honorable

discharge and was awarded the Purple Heart medal with oak leaf cluster. Id. In December 1980, the

appellant filed an original claim for service connection for a psychiatric disorder, which he alleged

was caused by his experiences in Vietnam. R. at 147. He stated further that the New York City

Police Department (NYPD) had rejected his application for employment as a police officer on

psychiatric grounds and that he had asked the NYPD to send VA a copy of its findings. Id. A VA

psychiatric examination report dated January 6, 1981, recited the history the appellant provided of

having been rejected by the NYPD on the basis of a severe psychiatric disorder. R. at 150-51. The

examination revealed that he was alert, clear and oriented, and his speech was relevant and coherent.

Id. The appellant denied having recurrent war dreams, startle reflexes, or temper problems; he

described himself as sociable and stated that he "gets along well with people." Id. He denied

delusions, hallucinations, or suicidal ideation. Id. His memory, judgment, and insight were not

impaired. The examiner diagnosed "[n]o psychiatric disorder." Id. The RO issued a rating decision

denying the appellant's claim in January 1981. R. at 154. In that decision, the RO identified the

January 6, 1981, VA examination as the "last examination" of the appellant. Id.

The appellant sought to reopen his claim in March 1981 and sent VA an authorization for the

release of the report of his 1979 through 1980 psychiatric interviews with the New York City

Department of Personnel. R. at 156. In April 1981, the RO requested the appellant's medical records

from the New York City Department of Personnel. R. at 159. A May 1981 letter indicated that the

appellant had been found medically qualified and that the Department of Personnel did not have any

records pertaining to the appellant. R. at 162. The letter stated, however, that the NYPD did have

records pertaining to the appellant. R. at 162. On May 18, 1981, the RO requested a copy of the

medical records pertaining to the appellant from NYPD Psychological Services. R. at 165. A June

2, 1981, letter from NYPD Psychological Services stated that it was not its policy to release records

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without the permission of its legal department, in addition to a written release from the person whose

records are requested. R. at 167. The letter further indicated that a copy of the RO's request was

being forwarded to the legal division. R. at 167. On August 28, 1981, the RO advised the appellant

by letter that it had not received a reply to its request for his medical records and that it would be

necessary for him to obtain them. R. at 170. The letter requested that he reply within 30 days and

stated further that VA must receive the evidence within one year from the date of the letter or

benefits would not be payable on his claim. Id. On the same date, the RO sent a second request for

the appellant's records to NYPD Psychological Services. R. at 172.

In August 1982, the appellant submitted a statement disagreeing with the August 28, 1981,

"denial" of his claim and requesting a hearing on the matter. R. at 174. The following month, the

RO informed the appellant by letter that new and material evidence was required to reopen his claim

that was denied by the RO on February 24, 1981. R. at 176. In January 1983, the appellant testified

at a personal hearing before the RO, during which he stated that the NYPD had rejected him for

employment because of a significant psychiatric disorder thought to be associated with his

experiences in Vietnam. R. at 182. In February 1984, the RO denied the appellant's claim.

Supplemental (Supp.) R. at 1, 4.

The appellant filed a Notice of Disagreement (NOD) with that RO decision in December

1984. R. at 190-91. In March 1986, the Board remanded the claim to the RO for additional

development, including the procurement of the appellant's military personnel records and the

provision of a VA psychiatric examination. R. at 222-24. An April 1986 memorandum signed by

VA physician Dr. Walter Abells reflected that the appellant's psychiatric examination that had been

scheduled for that day was canceled because no psychiatric report had been received from the

NYPD. R. at 226. A January 1987 Report of a VA field examination reflected that the examiner

had gone to the NYPD to obtain a copy of the appellant's psychiatric records but that his request was

denied. R. at 254. The examiner recommended that the VA District Counsel issue a subpoena to

the NYPD to obtain the records. Id. The district counsel, however, informed the RO that it had no

authority to issue subpoenas. He suggested that the director of the RO had such authority and should

be contacted. R. at 257. The appellant testified at personal hearings before the RO in October 1988

and in February 1989. R. at 264-314, 325-53. In July 1990, the Board reviewed the appellant's claim

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for service connection for a psychiatric disorder, including post-traumatic stress disorder (PTSD) de

novo, and issued a decision denying the claim. R. at 366-68. The Board found that the evidence did

not demonstrate that the appellant suffered from a psychiatric disorder, i.e., the record did not

contain a diagnosis of an acquired psychiatric disorder, and that no such disorder was incurred in or

aggravated by his military service. R. at 367-68. In this regard, the Board specifically noted that the

January 1981 VA examination, upon which the RO had relied for its denial that same month of the

appellant's claim, had not found any psychiatric disorder. R. at 367.

The appellant submitted a letter to the RO in April 1992 inquiring about the denial of his

claim. R. at 370-79. The RO replied by letter informing the appellant that the Board's July 1990

denial of his claim had become final and that he would need to submit new and material evidence

to reopen his claim. R. at 381. In November 1992, the appellant testified at another personal hearing

before the RO. R. at 393-409. He stated that he did not want to give his consent for the NYPD to

release a copy of its psychiatric report to VA until VA proved it had accurately analyzed the evidence

already of record. R. at 398. The appellant also stated that he was not willing to submit to another

VA psychiatric examination. R. at 401. The appellant had indicated in a July 1992 letter to the RO

that he wanted his claim to be reviewed on the evidence already of record so that his effective date

would be the date of his original claim. See R. at 388-89. He also has expressed a concern that the

RO's attempts at obtaining his NYPD psychiatric record at that point were an attempt to cause him

to "forfeit" his entitlement to an award of retroactive benefits. Id. At a personal hearing before the

RO in February 1993, the appellant stated that he was seeking a revision of the decision based upon

CUE, but he was unclear as to whether he wanted to assert CUE in an RO decision or a BVA

decision. R. at 444-45. He demanded to know why VA had not subpoenaed his records from the

NYPD but added that he did not want VA to do so at the current time, and, in fact threatened that

if VA did so, he would sue VA. R. at 459-61.

In June 1993, the RO determined that new and material evidence had not been presented to

reopen the appellant's claim. R. at 468. The RO also determined that it lacked jurisdiction over his

allegations of CUE in prior RO decisions because the BVA decision of July 12, 1990, found that an

acquired psychiatric disability was not incurred or aggravated in service, thereby subsuming the RO

decisions. R. at 469. The RO noted that any CUE claim, therefore, must be directed to the Board.

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Id. The appellant submitted an NOD in September 1993. R. at 473-77. In a subsequent

communication he identified as a demand for a Statement of the Case (SOC), the appellant indicated

that he was alleging that VA's failure to secure the NYPD report constituted CUE and that he would

not provide or authorize the release of that report to VA. R. at 485-89. An SOC was issued in

March 1994. R. at 492-99. The appellant filed a VA Form 1-9 that same month. R. at 501-11.

Therein, among other things, he argued that the Board lacked jurisdiction over his claim when it

issued its 1990 decision and that, therefore, the RO erred in refusing to adjudicate his CUE claims.

R. at 502, 510-11.

The appellant testified at hearings before the RO in November 1994 (R. at 521-59) and in

June 1995 (R. at 597-675). At the June 1995 hearing, the appellant repeatedly stated that the new

and material evidence issue was not on appeal and indicated that he was only appealing the CUE

issue. R. at 599-600, 608. He complained about VA's failure to get the NYPD report but told the

hearing officer that he did not want VA to communicate with the NYPD at that time because it was

much too late. R. at 605. He also commented that he had refused to submit to a psychiatric

examination after the 1986 BVA remand. R. at 611. In a subsequent written statement, the appellant

alleged that the RO committed CUE in March 1981 by advising him to file a reopened claim rather

than an NOD and that the BVA committed CUE in taking jurisdiction over the appeal (in 1986 and

1990) without a valid NOD. R. at 695-99. He also alleged that it was CUE for the RO to fail to get

the NYPD report. R. at 700-03.

In its March 13, 1997, decision on appeal, the Board noted that the appellant had withdrawn

the new-and-material-evidence issue from appellate consideration in his 1995 hearing. R. at 2. The

Board found that the 1981, 1982, and 1984 RO decisions were subsumed by the 1990 BVA decision,

and, therefore, were not subject to revision on the basis of CUE as a matter of law. R. at 1-5.

The appellant filed a motion for reconsideration of the March 1997 BVA decision with the

Chairman of the BVA in July 1997. Supp. R. at 6-17. He specifically stated that he was not seeking

reconsideration of the Board's July 1990 decision. Supp. R. at 6. The Chairman of the BVA denied

the appellant's motion on December 16, 1997, finding that his motion did not demonstrate that the

BVA decision contained "obvious error." R. at 19-20. This appeal followed.

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In his initial brief, the appellant argues that the Chairman exceeded his authority in denying

the appellant's motion for reconsideration by relying upon the "obvious error" standard. The

appellant also contends that his claim must be remanded because the Board failed to address his

allegation that the RO committed CUE by giving him improper advice to reopen his claim, rather

than file an NOD, after the January 1981 denial of his claim, and because the RO's misleading advice

amounted to a due process violation that rendered the RO's decisions nonfinal pursuant to Hayre v.

West, 188 F.3d 1327 (Fed. Cir. 1999) (Hayre I). The appellant also contends that the RO's alleged

breach of its duty to assist also rendered the RO decisions nonfinal pursuant to Hayre I. Finally, the

appellant contends that the enactment of 38 U.S.C. § 7111, permitting challenges to BVA decisions

on the basis of CUE, requires a remand because the Board found, in its March 1997 decision, that

Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994), precluded review of the 1990 BVA decision on the

basis of CUE.

The Secretary filed a brief on October 12, 2000, in which he argues that the Board's decision

should be affirmed because the Board properly found that the RO decisions could not be collaterally

attacked because they had been subsumed by the Board's 1990 decision. With respect to the

appellant's argument that the Chairman unlawfully denied his motion for reconsideration, the

Secretary argues that the Court should decline to exercise jurisdiction over the BVA Chairman's

denial of reconsideration because the reconsideration motion failed to allege changed circumstances

or new evidence (see Supp. R. at 6-16) as required by Engelke v. Gober, 10 Vet.App. 396 (1997).

The Secretary also contends that because the January 1981 RO determination had been subsumed,

the Court lacks jurisdiction to consider the appellant's argument that a remand is required for the

Board to address his contention that the RO's provision of misleading advice constituted CUE.

Finally, the Secretary argues that in the absence of a pending claim of CUE in the 1990 BVA

decision, there is no basis for remand under § 7111. The appellant filed a reply brief in October

2000.

In December 2000, the Court ordered supplemental briefing by the parties on the effect of

the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9,

2000). In February 2001, the appellant filed a supplemental brief in which he argues that a remand

is required pursuant to the VCAA, but that the Court should also address his additional allegations

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of error. The Secretary filed a supplemental brief on October 9, 2001, arguing that pursuant to

Smith v. Gober, 14 Vet.App. 227 (2000), the VCAA is not applicable to the matters on appeal

because the law and not the facts is dispositive.

II. ANALYSIS

A. The Appellant's Motion for Reconsideration

The appellant urges this Court to vacate the BVA Chairman's December 16, 1997, decision

to deny his motion for reconsideration of the BVA decision on appeal because, the appellant argues,

the Chairman improperly applied the "obvious error" standard in denying his motion. The Secretary

argues that pursuant to Engelke, supra, the Court lacks jurisdiction to entertain this argument. In

Engelke, the Court stated that although the Court has jurisdiction to review denials of reconsideration

if the Court has jurisdiction over the underlying BVA decision (Mayer v. Brown, 37 F.3d 618 (Fed.

Cir. 1994)), "the Court's willingness to review these denials has been limited to cases in which the

movant alleges either new evidence or changed circumstances." Engelke, 10 Vet.App. at 399.

"Where a claimant alleges only 'material error' or attempts to place before the Court an argument

that is best reserved for a direct appeal from the underlying BVA decision, the Court will not review

the denial of the motion to reconsider." Id. Although the Secretary is correct that the appellant's

motion for reconsideration was not based upon new evidence or changed circumstances, the

arguments presented here on appeal are not "best reserved for a direct appeal from the underlying

BVA decision." Id. In fact, the appellant's challenge to the standard of the BVA Chairman's review

of a motion for reconsideration would completely escape review if we were to decline to exercise

our jurisdiction. Accordingly, the Court holds that we have jurisdiction to consider the appellant's

challenge to the denial of his motion for reconsideration pursuant to Mayer, supra, and that the

exercise of that jurisdiction is appropriate in this matter.

As to the substance of the appellant's argument, however, we find no merit. This Court has

considered and rejected the same argument, made by the same counsel, in Timberlake v. Gober,

14 Vet.App. 122, 132-33 (2000). As in Timberlake, the appellant argues here that, pursuant to VA

Gen. Coun. Prec. 89-90 (Aug. 27, 1990) [hereinafter G.C. Prec. 89-90], "BVA reconsideration . . .

is no longer tied to the 'obvious error' standard found in what is now 38 U.S.C. § 7103(c)."

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Appellant's Brief (Br.) at 8-9. As was also the case in Timberlake "[t]he appellant's challenge is

premised upon [his] mistaken interpretation of [G.C. Prec. 89-90]." 14 Vet.App. at 133. The

appellant argues that, pursuant to G.C. Prec. 89-90, the Secretary may not utilize the "obvious error"

standard in determining whether or not to grant reconsideration of a BVA decision, and thus that the

BVA Chairman erred in this case by applying such a standard. In Timberlake, the Court explained:

The VA General Counsel's opinion framed the "QUESTION PRESENTED"

therein as follows: "When . . . the Chairman of the Board . . . orders reconsideration

. . . , what type of review is to be conducted by the reconsideration section[?]" The

opinion also "HELD" that, after reconsideration has been granted, "[t]he

reconsideration section then sits in the same position as would the Board panel

initially deciding the appeal, i.e., it should employ the same standard of review".

Thus, by its own terms, G.C. Prec. 89-90 applies only after reconsideration has been

granted and does not forbid the BVA Chairman from applying the "obvious error"

standard as to whether to grant a motion for reconsideration. The fact that the

Secretary has retained the concept of "obvious error" in his regulation regarding when

"[r]econsideration of an appellate decision may be accorded" is a further indication

that G.C. Prec. 89-90 did not intend the result urged by the appellant in this case.

38 C.F.R. § 20.1000(a) (1999) (stating that reconsideration of BVA decision is to be

accorded, inter alia, "[u]pon allegation of obvious error of fact or law"). The Court

expresses no opinion as to the validity of G.C. Prec. 89-90, which is not challenged

by the appellant in this case.

Timberlake, 14 Vet.App. at 133. Although the appellant is correct in his assertion here that the

Court's discussion of G.C. Pre. 89-90 was not essential to its holding in Timberlake, we find the

reasoning set forth in that case persuasive and hold today that G.C. Prec. 89-90 "applies only after

reconsideration has been granted and does not forbid the BVA Chairman from applying the 'obvious

error' standard as to whether to grant a motion for reconsideration." See id.

B. Appellant's Allegations of CUE in the 1981, 1982, and 1984 RO Decisions

With respect to the appellant's allegations of CUE in the 1981, 1982, and 1984 RO decisions,

the Federal Circuit's holdings in Smith, supra; Donovan v. West, 158 F.3d 1377 (Fed. Cir. 1998); and

Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1998), are controlling. In Smith, the Federal Circuit

made clear that, under the law as it existed at the time of that decision, BVA decisions were not

subject to revision on the basis of CUE. Moreover, in Duran v. Brown, this Court held that after

Smith, "where an [agency of original jurisdiction (AOJ)] decision was appealed to and affirmed by

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the Board and thus subsumed by the Board's decision, no claim of '[CUE]' under 38 C.F.R.

§ 3.105(a) exists as a matter of law with respect to that AOJ decision." 7 Vet.App. 216, 224 (1994).

In Donovan v. West, supra, the Federal Circuit considered a situation in which a

final, unappealed rating decision was reopened and adjudicated on the merits by the

BVA. The court held that an unappealed 1947 RO decision, subsequently reviewed

de novo on the merits by the BVA in 1988, was subsumed by that BVA decision and,

thus, not subject to a claim of CUE as a matter of law. Id. at 1381-82, aff'g

Donovan v. Gober, 10 Vet.App. 404, 408-09 (1997). Similarly, in Dittrich v. West,

supra, the Federal Circuit affirmed the BVA's dismissal where a 1969 BVA decision

reopened and fully readjudicated the same claim that was the subject of a 1960 rating

decision. See id. at 1353.

Morris v. West, 13 Vet.App. 94, 96 (1999), aff'd sub nom. Morris v. Principi, 239 F.3d 1292 (Fed.

Cir. 2001). In Brown v. West, 203 F.3d 1378 (Fed. Cir. 2000) the Federal Circuit clarified that a later

BVA decision's delayed subsuming of an RO decision occurs only where the Board decided the same

issue that the RO decided and where the RO decision and BVA review were based on the same

factual basis. Brown, 203 F.3d at 1381-82. The requirement that the Board base its decision on the

same factual basis, however, requires that the evidence of record at the time of the prior final RO

decision be considered by the Board. See Donovan and Dittrich, both supra; see also Morris,

13 Vet.App. at 94.

In the instant case, the Board's 1990 decision decided de novo the same issue that had been

decided by the RO in January 1981, i.e., entitlement to service connection for an acquired psychiatric

disorder. Further, the BVA essentially found that, in light of the January 1981 VA examination

report, the record before the RO in 1981 did not reflect the finding of any psychiatric disorder, thus

in essence determining that, in 1981, the appellant could not have prevailed on his

service-connection claim. The RO decisions of 1982 and 1984 confirmed the prior denials of the

appellant's claim based upon the same evidentiary record. Further, those RO decisions were

appealed to and affirmed by the BVA in its July 1990 decision. The 1990 BVA decision reviewed

the same issue before the RO in 1981, 1982, and 1984, de novo on the same evidentiary record.

Accordingly, the RO's 1981, 1982, and 1984, decisions were subsumed by the Board's 1990 decision.

See Donovan (delayed subsuming), Dittrich (same), and Duran (direct subsuming), all supra. The

introduction of the 1969 psychiatric consultation (see R. at 230) into the record in June 1986 did not

alter the evidentiary record in a meaningful way so as to affect subsuming. The Board, therefore,

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properly concluded as a matter of law that the RO decisions of 1981, 1982, and 1984 were subsumed

by the 1990 BVA decision and not subject to revision on the basis of CUE.

Although the appellant is correct that more recent legislation allows a claim of CUE in BVA

decisions (38 U.S.C. § 7111), the only issues before the Board in the March 1997 decision here on

appeal were the appellant's claims of CUE in the 1981, 1982, and 1984 RO decisions. The appellant

did not raise any allegations of CUE in the 1990 BVA decision. Because allegations of CUE must

be specifically raised to the Board, this Court has no authority to remand the matter for consideration

of the new statute. See Russell v. Principi, 3 Vet.App. 310, 319-20 (1992) (en banc).

C. Appellant's Allegations of Misleading Advice and Hayre

The appellant argues that the Court should remand this matter because, he contends, the

Board failed to address his contention that the RO committed CUE in giving him misleading

information when he was advised to submit new and material evidence to reopen his claim, rather

than advising him to file an NOD. Appellant's Br. at 15-16. The BVA decision here on appeal, the

only matter over which this Court has jurisdiction, found that the RO decisions the appellant

challenges as the product of CUE are not subject to revision on the basis of CUE as a matter of law.

We have affirmed that decision. Because the Board did not, indeed it could not, reach the merits of

the appellant's CUE allegations, the Board did not err in not addressing the specific bases of the

appellant's CUE allegations.

The appellant also argues that the allegedly misleading advice given to him by the RO, or the

RO's failure to give him proper advice, vitiated the finality of the RO decisions. Appellant's Br. at

17-20 (citing Hayre I). The appellant asks this Court to remand his claim for the Board to determine,

in the first instance, whether his due process rights were violated, thereby vitiating the finality of the

RO's decisions. The appellant also argues that this matter should be remanded for the Board to

consider whether his allegations that the RO breached its duty to assist could operate to vitiate the

finality of the RO's decisions pursuant to Hayre I, supra. Although the appellant did raise arguments

regarding the duty to assist and misleading advice to the Board, that these alleged errors somehow

rendered the RO's decisions nonfinal is a matter raised for the first time here on appeal. There is no

BVA decision on the issue of finality for this Court to review, nor has the appellant submitted any

NOD which, "'in [any] way, explicitly or implicitly, purported to challenge the 'issue of finality' of

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the [1981, 1982, and 1984] adjudication[s].'" Baldwin v. Principi, 15 Vet.App. 302, 303 (2001) (per

curiam order) (quoting Hayre v. Principi, 15 Vet.App. 48, 52 (2001) [hereinafterHayre II]).

Accordingly, as in Baldwin and Hayre II, the Court has no choice but to dismiss the appellant's

challenges to the finality of the RO's 1981, 1982, and 1984 decisions on the basis of Hayre I, supra,

for lack of jurisdiction. Baldwin, 15 Vet.App. at 303.

D. 38 U.S.C. § 7111

At the time the Board issued its decision in this matter, BVA decisions were not subject to

revision on the basis of CUE. See Smith, supra. The Board correctly noted this in its March 13,

1997, decision. R. at 4. However, subsequent to that 1990 BVA decision, Congress enacted a law

making BVA decisions subject to review on the basis of CUE. 38 U.S.C. § 7111. The appellant

argues, therefore, that the Court should remand his claim for the Board to consider whether the 1990

BVA decision was the product of CUE pursuant to section 7111. However, the record does not

reflect that the appellant has ever attempted to challenge that BVA decision on the basis of CUE.

In fact, in his motion for reconsideration of the Board's 1997 decision, the appellant made clear that

his challenge was directed at the RO's 1981, 1982, and 1984, decisions and that he was not seeking

reconsideration of the Board's 1990 decision. Supp. R. at 6, 8. As the Board noted, the appellant

may still challenge that 1990 decision by filing a motion for reconsideration. Moreover,

section 7111 affords him a second avenue of relief in that he may now challenge that 1990 decision

on the basis of CUE. However, as no evidence of his making such a claim appears in the record on

appeal, this Court is without jurisdiction to remand that matter to the Board.

E. VCAA

In Livesay v. Principi, 15 Vet.App. 165, 178-79 (2001) (en banc), this Court held that the

VCAA has no application to allegations of CUE as a matter of law. In the instant case, however,

unlike in Livesay, the Board did not address the merits of the appellant's CUE claims, rather it

determined that the RO decisions at issue were not subject to review for CUE as a matter of law.

Thus, it is the law, and not the underlying facts or development of the facts that are dispositive in this

matter. Accordingly, the VCAA can have no effect on this appeal. See Smith v. Gober, 14 Vet.App.

227 (2000) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi,

15 Vet.App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive); see

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also Bernklau v. Principi, 291 F.3d 795, 804-06 (Fed. Cir. 2002) (duty to assist provisions of VCAA

are not retroactive).

III. CONCLUSION

Upon consideration of the foregoing, the March 13, 1997, decision of the Board of Veterans'

Appeals is AFFIRMED.

KRAMER, Chief Judge, concurring in part and dissenting in part: I concur in the decision

except as to part II.A. Because, for the reasons set forth below, I disagree with the majority's

conclusion as to this Court's jurisdiction over the appellant's July 1997 motion for reconsideration

of the March 1997 Board of Veterans' Appeals (Board) decision, I respectfully dissent from that part

of the majority opinion.

In holding that the Court has jurisdiction over the denial of the appellant's motion for

reconsideration, particularly his argument regarding the standard of review utilized by the Senior

Deputy Vice Chairman of the Board in denying that motion, the majority relies upon Mayer v.

Brown, 37 F.3d 618 (Fed. Cir. 1994), overruled in part by Bailey v. West, 160 F.3d 1360, 1368 (Fed.

Cir. 1998) (en banc), and Engelke v. Gober, 10 Vet.App. 396 (1997). In so doing, however, the

majority appears to be in conflict with prior caselaw that provides that this Court's jurisdiction over

reconsideration motions is limited to situations where an appellant has alleged either new evidence

or changed circumstances in his motion. See Romero v. Brown, 6 Vet.App. 410, 412 (1994)

(whether Court may review denial of reconsideration depends on basis for motion; key question is

whether there is new evidence or changed circumstances that might make judicial review available);

Losh v. Brown, 6 Vet.App. 87, 90 (1993) (Court's power to review denials of reconsideration is

limited by Supreme Court's holding in I.C.C. v. Locomotive Engineers, 482 U.S. 270, 284 (1987),

that, if petition that was denied sought reopening based on new evidence or changed circumstances,

review is available; otherwise, agency's refusal to go back over ploughed ground is nonreviewable);

Patterson v. Brown, 5 Vet.App. 362, 363-65 (1993) (to same effect); see also Mayer, 37 F.3d at 620

(this Court may have jurisdiction over reconsideration motion); Engelke, 10 Vet.App. at 399-400

(discussing review of appellant's motion for reconsideration in terms of new evidence and changed

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circumstances). Because I believe that, pursuant to Locomotive Engineers, supra, and this Court's

precedential caselaw, our review of the denial of a motion for reconsideration is limited to the

situations where an appellant has alleged in that motion either new evidence or changed

circumstances, I cannot join in the majority's holding to the contrary.

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