Jeffery A. Wells v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 03-1014

JEFFERY A. WELLS, APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and FARLEY, IVERS, STEINBERG,

GREENE, KASOLD, and HAGEL, Judges.

ORDER

On November 3, 2003, the appellant, through counsel, filed a motion for an initial decision

by the full Court. He argues that full-Court consideration is necessary because the appeal presents

the opportunity to consider all aspects of the amendments to the Veterans Benefits Act of 2002, Pub.

L. No. 107-330, 116 Stat. 2820 (2002).

Motions for a full-Court decision are not favored. Ordinarily they will not be granted unless

such action is necessary to secure or maintain uniformity of the Court's decisions or to resolve a

question of exceptional importance. See U.S. VET . APP . R. 35(c). In this matter, the appellant has

not shown that either basis exists to warrant a full-Court decision.

Upon consideration of the foregoing, it is

ORDERED that the appellant's motion for an initial decision by the full Court is denied.

DATED: May 11, 2004 PER CURIAM.

STEINBERG, Judge, dissenting: I voted for the appellant's motion for initial en banc

consideration of this case in order for the full Court to address issues of exceptional importance

raised by the appellant (in the brief he submitted in October 2003) regarding the effect of section 401

of the Veterans Benefits Act of 2002 (VBA), Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832, and

especially for the full Court to examine collectively the Court's decisions in Gilbert v. Derwinski,

1 Vet.App. 49 (1990), Roberson v. Principi, 17 Vet.App. 135 (2003) (Roberson III), and Mariano

v. Principi, 17 Vet.App. 305 (2003), in light of the enactment of VBA § 401. See U.S. VET . APP .

R. 35(c) (providing that full-Court consideration "[o]rdinarily . . . will not be granted unless such

action is necessary to secure or maintain uniformity of the Court's decisions or to resolve a question

of exceptional importance").

I. Background: Roberson III

The VBA amendments were enacted in December 2002. In June 2003, the Court issued a

per curiam order in Roberson III, which involved an inferred claim, for a Department of Veterans

Affairs (VA) rating of total disability based on individual unemployability (TDIU), that the Court

concluded "ha[d] never been addressed by [a VA regional office (RO)] or the Board of Veterans'

Appeals (Board or BVA)]", and that the Court thus remanded for initial consideration by the Board.

Roberson III, 17 Vet.App. at 148. In Roberson III, the Court made only two holdings as to matters

before it on appeal: (1) That the Court was bound by the opinion of the U.S. Court of Appeals for

the Federal Circuit (Federal Circuit) in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), which

reversed this Court's decision that that appellant's prior claim for service connection had not raised

a claim for a TDIU rating and (2) that, because there was no VARO or BVA decision to review on

the claim for a TDIU rating, "we must decline the appellant's invitation to run roughshod over the

VA's adjudication process" by "adjudicat[ing] the matter in the first instance." Roberson III, supra.

Based on these holdings, the Court remanded "the matter of the appellant's eligibility for [a] TDIU

[rating] . . . to the Board", ibid., after first concluding that the Court had jurisdiction over the

unadjudicated TDIU-rating claim because it was "expressly presented to the RO and the Board", id.

at 138.

Although the Court in Roberson III had limited jurisdiction over the TDIU-rating claim

(insofar as it could have remanded it for the Board to refer it to the RO1), the Court lacked

jurisdiction to reach the merits of that claim because the Board had never addressed it and it was

never placed in appellate status before the Board by a Notice of Disagreement (NOD) that disagreed

either with the RO's adjudication of that claim or the RO's failure to adjudicate it. See 38 U.S.C.

§ 7105(a) (providing that BVA review initiated by an NOD); Buckley v. West, 12 Vet.App. 76, 82

(1998) (concluding that Board’s jurisdiction "derives from a claimant’s NOD"); Velez v. West,

11 Vet.App. 148, 157 (1998) (recognizing that NOD is valid if it expresses "disagreement with an

RO's . . . failure to adjudicate [a] claim" raised to RO); Hazan v. Gober, 10 Vet.App. 511, 516 (1997)

(same); Isenbart v. Brown, 7 Vet.App. 537, 541 (1995) (same). This Court's reliance in Roberson

III on Fenderson v. West, 12 Vet.App. 119 (1999), and Holland v. Gober, 10 Vet.App. 433 (1997)

(per curiam order), for the Court's assertion of jurisdiction was misplaced because in both of those

cases there were NODs as to the claims unadjudicated by the Board. Roberson III, 17 Vet.App. at

138. Unlike in Fenderson and Holland, the Court in Roberson III, in order to correct the Board's

error in failing to consider the TDIU-rating claim, should simply have remanded the claim to the

BVA for it to refer the matter to the RO, because on remand the Board would not have had any

jurisdiction to adjudicate that TDIU-rating claim; the Board's jurisdiction would allow it merely to

refer that claim – not then in appellate status before the Board – to the RO.2

1

See Bruce v. West, 11 Vet.App. 405, 408 (1998); Godfrey v. Brown, 7 Vet.App. 398, 408-09 (1995); cf.

Manlincon v. West, 12 Vet.App. 238, 240-41 (1999) (remanding, where claim was in appellate status before Board of

Veterans' Appeals (BVA or Board), claim unadjudicated by BVA and Department of Veterans Affairs (VA) regional

office (RO) for BVA to remand to VARO).

2

See supra note 1.

2

Thus, the Court in Roberson III, having determined that it could not exceed "the authority

and primary responsibility of this Court . . . to review Board decisions", Roberson III, 17 Vet.App.

at 148, had no basis for addressing the appellant's contention that the Court should adjudicate the

inferred TDIU-rating claim in the first instance – that argument was rendered moot by the former

determination.3 The Roberson III Court's extensive examination of the meaning and interpretation

of the effect of VBA § 401, primarily in terms of its effect on how this Court reviews BVA decisions

on the merits, Roberson III, 17 Vet.App. at 138-48, must therefore be considered dicta.4 However,

in Mariano this Court subsequently held, as Roberson III had concluded, id. at 146, that under VBA

§ 401 our standard of review regarding BVA factfinding continued to be the "clearly erroneous"

standard, 38 U.S.C. § 7261(a)(4), and that "[t]he outcome of the Board's application of the section

5107(b) equipoise standard is a factual determination that this Court reviews under [that] 'clearly

erroneous' standard." Mariano, 17 Vet.App. at 313; see also Mitchell v. Principi, __ Vet.App. __,

__, No. 01-1659, 2004 WL 742106, at *1-2 (Apr. 7, 2004) (per curiam order) (Kramer, C.J.,

concurring) (reiterating holding from Mariano, supra). That is where I believe the Court's caselaw

is to date in terms of the effect of VBA § 401. What has not yet been made clear, however, is exactly

how (by what criteria) the Court should review the Secretary's application of the section 5107(b)

equipoise standard. Because I believe that VBA § 401 was enacted to and did effect a substantial

change from prior law, I voted to grant full-Court consideration to this case in order to address this

matter of exceptional importance as to which our caselaw is much in need of clarification. See VET .

APP . R. 35(c). My conclusions on this matter follow.

3

The Court's decision in Roberson v. Principi, 17 Vet.App. 135 (2003) (Roberson III) to address the

amendments made by section 401 of the Veterans Benefits Act of 2002 (VBA), Pub. L. No. 107-330, § 401, 116 Stat.

2820, 2832, was also problematic because the Court had received virtually no briefing from the Secretary on the

questions that it addressed regarding the VBA amendments, largely because the Secretary had (in my view, correctly)

concluded that the Court could not properly reach those issues and because he (also, in my view, correctly) had asserted

that the amendments could not affect the standard of review in the Court over Board decisions denying claims of clear

and unmistakable error. Roberson III Secretary's Brief at 13-15.

4

It appears that the panel had reservations about the correctness of the policy judgment that would underlie

any effort by Congress to change this Court's standard of judicial review: Specifically, at the end of its analysis,

immediately before rejecting "the appellant's argument that the VBA somehow altered the landscape of judicial review",

the Roberson III panel stated:

If [Congress] decides that the record produced by a non-adversarial claims

adjudication process is, in its judgment, inadequate, then it can sharpen that process

by making it adversarial through elimination of the attorney fee prohibition during

claim development and adjudication. Merely changing this Court's standard of

review while doing nothing to enhance the record would compound rather than

correct any problems.

Roberson III, 17 Vet.App. at 174. Moreover, the Roberson III Court refers to Congress' having "amended section

7261(b) [by] adding an entreaty to the Court to 'take due account of the Secretary's application of [38 U.S.C.

§ ]5107(b).'" Roberson III, 17 V et.App. at 140. An entreaty, however, is "an earnest request; supplication; prayer",

W EBSTER 'S N EW W O RLD D ICTION ARY 454 (3d ed. 1998), whereas in the amended section 7261(b)(1) Congress m andated

("shall") that the Court carry out this new review. 38 U.S.C. § 7261(b)(1).

3

II. VBA Amendments

A. Text of Statute

Section 401 of the VBA, effective December 6, 2002, amended 38 U.S.C. § 7261(a)(4) and

(b)(1). VBA § 401. Prior to the VBA, our caselaw provided (1) that the Court was authorized to

reverse a Board finding of fact only where "the only permissible view of the evidence [of record] is

contrary to that found by the BVA", Johnson (Brenda) v. Brown, 9 Vet.App. 7, 10 (1996), i.e.,

supports the appellant's position, and (2) that a Board finding of fact must be affirmed where "there

is a 'plausible basis' in the record" for the Board's determination, Hurd v. West, 13 Vet.App. 449, 451

(2000). See also Harder v. Brown, 5 Vet.App. 183, 189 (1993) (citing Karnas v. Derwinski,

1 Vet.App. 308, 311 (1991)); Barnhill v. Brown, 5 Vet.App. 75, 77 (1993).

As a result of VBA § 401's amendments to section 7261(a)(4), the Court is now directed to

"hold unlawful and set aside or reverse" any "finding of material fact adverse to the claimant . . .

if the finding is clearly erroneous." 38 U.S.C. § 7261(a)(4), as amended by VBA § 401(a) (emphasis

indicates VBA amendments). Furthermore, new section 7261(b)(1) now provides in entirely new

language added to that subsection:

(b) In making the determinations under subsection (a), the Court

shall review the record of proceedings before the Secretary and the

[BVA] pursuant to [38 U.S.C. § ]7252(b) of this title[ 38] and shall –

(1) take due account of the Secretary's application of

section 5107(b) of this title . . . .

38 U.S.C. § 7261(b)(1). The Secretary's obligation under section 5107(b), as referred to in

section 7261(b)(1), is as follows:

(b) BENEFIT OF THE DOUBT . – The Secretary shall consider all

information and lay and medical evidence of record in a case before

the Secretary with respect to benefits under laws administered by the

Secretary. When there is an approximate balance of positive and

negative evidence regarding any issue material to the determination

of a matter, the Secretary shall give the benefit of the doubt to the

claimant.

38 U.S.C. § 5107(b). In Gilbert, the Court characterized the benefit-of-the-doubt rule (then found

in 38 U.S.C. § 3007(b)) as mandating that "when . . . the evidence is in relative equipoise, the law

dictates that [the] veteran prevails" and that, conversely, a VA claimant loses only when "a fair

preponderance of the evidence is against the claim." Gilbert, 1 Vet.App. at 54-55; see also Shoffner

v. Principi, 16 Vet.App. 208, 215 (2002) (citing Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001),

for proposition that "[Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096]

did not change [the section 5107(b)] benefit-of-the-doubt doctrine").

4

Reading amended sections 7261(a)(4) and 7261(b)(1) together, which must be done in order

to determine the effect of the VBA § 401 amendments, this Court is now directed, for the first time

as part of its scope-of-review responsibility under section 7261(a)(4), to undertake three new actions

in deciding whether BVA factfinding adverse to a claimant is clearly erroneous and, if so, what the

Court should hold as to that factfinding. See Reno v. Koray, 515 U.S. 50, 56-57 (1995) (construing

statutory language in context of statutory scheme); Kilpatrick v. Principi, 16 Vet.App. 1, 7 (2002)

(examining entire statutory scheme in interpreting meaning of statute), aff'd, 327 F.3d 1375 (Fed.Cir.

2003). Specifically, the plain meaning of the amended subsections (a)(4) and (b)(1) requires the

Court (1) to review all evidence "before the Secretary and the Board", 38 U.S.C. § 7261(b); (2) to

consider "the Secretary's application of" the benefit-of-the-doubt rule in view of that evidence,

38 U.S.C. § 7261(b)(1); and (3) if the Court, after carrying out actions (1) and (2), concludes that an

adverse BVA finding of fact is clearly erroneous and therefore unlawful, to decide whether to set it

aside or reverse it, 38 U.S.C. § 7261(a)(4).

B. Historical Context

The significance and effect of the three new actions that the Court has been directed or

authorized (in the case of reversal) to undertake is best understood in the historical context of the

Court's exercise of its scope of review. Prior to the enactment of VBA § 401, the Court was

permitted by section 7261(a)(4) only to "set aside" a "clearly erroneous" BVA finding of fact. See

Veterans' Judicial Review Act (VJRA), Pub. L. No. 100-687, § 301(a), 102 Stat. 4105, 4115 (1988)

(enacting 38 U.S.C. § 4061(a)(4), renumbered as section 7261(a)(4)). Almost from this Court's

inception, its review of findings of fact under the "clearly erroneous" standard had been construed

as "parallel . . . [to] the standard used by [U.S.] Courts of Appeals in reviewing findings of material

fact made by [U.S.] District Courts," Gilbert, 1 Vet.App. at 52; see FED . R. CIV . P. 52(a) (providing,

at time of VJRA's enactment and presently, that courts of appeals review district court findings of

fact under "clearly erroneous" standard). The Court characterized this standard as meaning that "if

there [wa]s a 'plausible' basis in the record for the factual determinations of the BVA, even if this

Court might not have reached the same factual determinations, we c[ould] not overturn them",

Gilbert, 1 Vet.App. at 52-53 (citing United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948), Anderson v. City of Bessemer, 470 U.S. 564, 573-74 (1985), and Danville Plywood Corp.

v. United States, 899 F.3d 3 (Fed. Cir. 1990)). As discussed in part II.E, below, however, this

formulation of the "clearly erroneous" standard seems at its inception to have strayed from the

formula applied in traditional Article III appellate review as articulated by the Supreme Court in the

three cases on which Gilbert purported to rely. In any event, more recently but prior to the VBA,

the Federal Circuit in Hensley v. West expounded as follows on this Court's standard of review as

enacted in the VJRA:

On factual matters, the findings of the BVA may be overturned by the

Court of Appeals for Veterans Claims only if they are clearly

erroneous. See 38 U.S.C. § 7261(a)(4). . . . Furthermore, "in no

event shall findings of fact made by the Secretary or [BVA] be

subject to trial de novo by the Court [of Appeals for Veterans

5

Claims]." 38 U.S.C. § 7261(c). The statutory provisions are

consistent with the general rule that appellate tribunals are not

appropriate fora for initial fact finding.

Hensley, 212 F.3d 1255, 1263 (Fed. Cir. 2000).

Under new section 7261(a)(4), in addition to the longstanding pre-VBA direction to the Court

to "set aside" a "clearly erroneous" finding, the Court is expressly permitted to "reverse" such an

adverse factfinding. As the ensuing discussion illustrates, the VBA § 401 amendments to

section 7261(a)(4) and (b) have fundamentally altered this Court's BVA-factfinding scope of review,

as evidenced by both the plain meaning of the amended language of these subsections as well as the

unequivocal legislative history of the amendments.

C. Examination of New Statutory Language

In examining the text of the § 401 amendments, I turn first to the addition in

section 7261(a)(4) of "or reverse" as to BVA factfinding that is "adverse to the claimant", one of the

three new actions directed or authorized to be undertaken by the Court pursuant to amended

section 7261. As a general rule of statutory construction, meaning must be attributed to each

amendment made by Congress: "The [Supreme] Court has often said that 'every clause and word

of a statute' should, 'if possible,' be given 'effect.'"5 The plain meaning of the language used,

"reverse", signifies a major shift for the Court's review of BVA factfinding. Although

section 7252(a) has included, since the enactment of the VJRA in 1988, general authority for the

Court to "reverse" a Board decision, VJRA § 301(a), 102 Stat. at 4113 (enacting 38 U.S.C.

§ 4052(a), now section 7252(a) ("the Court shall have power to affirm, modify, or reverse a decision

of the Board")), it appears (in light of Hensley, supra) that that authority could have pertained to

reversal solely where factfinding was not required, i.e., where reversal was required as a matter of

law.6 Whereas "setting aside" a finding of fact is discarding or invalidating it and allowing the

agency or court from which the appeal is heard to readjudicate the issue, "reversing" a finding of fact

is to change it.7 Furthermore, consistent with the proclaimant nature of the VA adjudication system,

5

Chickasaw Nation v. United States, 534 U.S. 84, 93 (2001) (quoting United States v. Menasche, 348 U.S.

528, 538-539 (1955), and Montclair v. Ramsdell, 107 U.S. 147, 152 (1883) ("[i]t is the duty of the court to give effect,

if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the

legislature was ignorant of the meaning of the language it employed")); see Duncan v. Walker, 533 U.S. 167, 174 (2001)

(quoting Market Co. v. Hoffman, 101 U.S. 112, 115 (1879), for

proposition that "[a]s early as in Bacon's Abridgment, sect. 2, it was said that 'a statute ought, upon the whole, to be so

construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant'").

6

See Taylor and Andrulonis, infra note 7.

7

This distinction is well presented in Icicle Seafoods, Inc. v. Worthington (on which the U.S. Court of Appeals

for the Federal Circuit (Federal Circuit) had relied in Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000)), where the

Supreme Court described the general, traditional role of Article III appellate-court review (which, of course, is not

6

see Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998), and the availability of appeal to this

Court only by the appellant, see 38 U.S.C. § 7252(a), Congress in VBA § 401 provided the authority

to "reverse" (or "set aside") only those findings that are "adverse to the claimant".8 Moreover, as set

forth below, the legislative history bolsters the plain meaning of the statute by making clear that

Congress intended for the Court to take a more proactive and less deferential role in its BVA-

factfinding review. See infra notes 15-18 and accompanying text.

As to new section 7261(b)'s requirement that this Court "review the record of proceedings",

that provision further supports the conclusion that VBA § 401 brought about a major expansion of

this Court's responsibilities as to review of BVA factfinding. 38 U.S.C. § 7261(b) ("In making the

determinations under subsection (a) of this section, the Court shall review the record of proceedings

before the Secretary and the [BVA] pursuant to section 7252(b)."). The "record of proceedings"

referred to in new section 7261(b)(1) is the record on appeal (ROA) designated by the parties and

transmitted to the Court pursuant to Rules 10 and 11 of this Court's Rules of Practice and Procedure.

See Homan v. Principi, 17 Vet.App. 1, 3-4 (2003) (per curiam order). Although section 7252(b) has

always provided that "[r]eview in the Court shall be on the record of proceedings before the

Secretary and the Board", the Federal Circuit in Hensley implicitly held that our review under section

7261(b) was limited to the evidence used by the Board. Hensley, 212 F.3d at 1264; see also Winters

v. Gober, 219 F.3d 1375, 1380 (Fed. Cir. 2000) (holding that Court had exceeded its statutory

authority and prejudiced appellant by deciding case on grounds "not relied on" by Board that may

have required "improper de novo findings of fact"). The addition of that requirement to section

7261(b), in light of Hensley, signals that the Court's review should be based on all the evidence

before the Board, rather than just the evidence used by the Board and suggests a congressional

carried out pursuant to the same standard of review made applicable to this Court by the VBA § 401 amendments to

section 7261(a)(4) and (b)(1)):

If the Court of Appeals . . . was of the view that the findings of the District Court

were "clearly erroneous" . . . , it could have set them aside on that basis. If it

believed that the District Court's factual findings were unassailable, but that the

proper rule of law was misapplied to those findings, it could have reversed the

District Court's judgment. But it should not simply have made factual findings on

its own.

Icicle Seafoods, Inc., 475 U.S. 709, 714 (1986) (emphasis added). Compare, e.g., Fed. Election Comm'n v. Akins,

524 U.S. 11, 25 (1998) ("If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency's

action and remand the case – even though the agency (like a new jury after a mistrial) might later, in the exercise of its

lawful discretion, reach the same result for a different reason." (emphasis added)), with Taylor v. Chater, 118 F.3d 1274,

1278 (8th Cir. 1997) (reversing district court decision and ordering district court to grant summary judgment to party),

and Andrulonis v. United States, 26 F.3d 1224, 1236 (2d Cir. 1994) (reversing part of district court decision that

awarded payment of interest through March 11, 1991, and "direct[ing] the district court to award interest through

February 13, 1992" (emphasis added)).

8

Cf. Morgan v. Principi, 16 Vet.App. 228, 232 (2002) ("Neither this Court nor the . . . Federal Circuit has held

whether this Court can disturb a favorable Board determination.").

7

rejection of both Hensley and Winters. See infra note 17 and accompanying text (discussing

legislative history suggesting Hensley was overruled by VBA § 401).9

Finally, the effect of the addition to the Court's scope-of-review authority in section 7261 of

a direction ("shall review") to this Court to "review the record of proceedings before the Secretary

and the Board . . . pursuant to section 7252(b)" can be fully understood only in the context of the

specific mandate in section 7252(b) that "[t]he extent of [this Court's] review shall be limited to the

scope provided in section 7261." 38 U.S.C. § 7252(b); see Mayer v. Brown, 37 F.3d, 618, 620 (Fed.

Cir. 1994) (stressing separate purposes of section 7252(b) and section 7261), overruled on other

grounds by Bailey (Harold) v. West, 160 F.3d 1360 (Fed. Cir. 1998). That is, section 7252(b) says

in effect that unless a matter is set forth in section 7261, that matter is not part of the Court's scope

of review; the VBA § 401(b) amendment to section 7261(b) now meets that criterion.10

9

I do not understand how the Court could reverse (as distinguished from setting aside) a finding of material

fact without in some fashion finding facts itself based on evidence of record and, hence, I conclude that, by virtue of this

new statutory authority, Hensley, supra, no longer applies to prevent this Court from reversing under section 7261(a)(4)

and, in some manner, weighing evidence in order to take due account of the Secretary's application of the equipoise rule

as well as, under section 7261(b)(2), to take due account of the rule of prejudicial error. In this regard, the list of

precedential cases, cited by the Court in Roberson III, 17 Vet.App. at 140, in which the Court had previously reversed

BVA factfinding divides into two categories: (1) Those cases preceding Hensley that were not bound by its no-

factfinding rule and (2) the two cases issued post-Hensley, namely Pentecost v. Principi and Harth v. West. Harth's

reversal was based on a de novo application of the law to the facts in order to find well grounded a service-connection

claim for post-traumatic stress disorder (PTSD), Harth, 14 Vet.App. 1, 5-6 (2000), and the opinion does not mention

section 7261(a)(4). Pentecost's reversal (although section 7261(a)(4) is referred to) is also as to a PTSD claim and seems

to be based on the Board's too-strict reading of both the stressor-corroboration requirement in 38 C.F.R. § 3.304(f)

(1999) and the "controlling precedent" of Suozzi v. Brown, 10 Vet.App. 307 (1997). Pentecost, 16 Vet.App. 124, 128-29

(2002) (quoting Suozzi,10 Vet.App. at 311, in which the Court had "rejected" a narrow definition of "corroboration" that

would require "corroboration of every detail[,] including the appellant's personal participation").

10

About this section 7261(b)(1) insertion, the Roberson III order stated:

The Secretary's application, or lack thereof, of the benefit[-]of[-]the[-]doubt rule is

part of any decision of the B oard, and was therefore already within the Court's

review power under [38 U.S.C. §] 7252(a). The command that the Board "shall

review the record of proceedings before the Secretary and the Board . . . pursuant

to section 7252(b)" wraps the statutory text around on itself. Section 7252(b) states,

in pertinent part, that "[r]eview in the Court shall be on the record of proceedings

before the Secretary and the Board" and that "[t]he extent of the review shall be

limited to the scope provided in section 7261." In other words, section 7261 states

that the Court shall review the record of proceedings which in turn states that such

review is limited by section 7261. Review is thus trapped between these two

mutually referential provisions, which is to say that there is no clear reading of this

provision.

Roberson III, 17 Vet.App. at 140. I must confess not to find any such "wrap[ping] . . . around" or "trapp[ing]" of review.

Although section 7252(b)'s pre-VBA direction that the Court review the "record of proceedings" included, in a general

way, the Board's consideration of the equipoise standard, the direct command in new section 7261(b) that the Court, in

completing its review, "take due account of the Secretary's application of section 5107(b)" has made a meaningful

change to our scope of review. 38 U.S.C. § 7261(b)(1) (emphasis added). The first matter under section 7252(a) is a

8

Perhaps the most dramatic of the three Court actions directed or authorized by VBA § 401

is the mandate that the Court "take due account of the Secretary's application of section 5107(b)",

which, for many years preceding the enactment of the VJRA, had been known as the "benefit-of-the-

doubt rule". 38 U.S.C. § 7261(b)(1). The "application of section 5107(b)" in VBA § 401, refers to

the question whether "there is an approximate balance of positive and negative evidence" – a

criterion that has been known since Gilbert as the "equipoise rule" but is more aptly called the

"equipoise standard", see Mariano, 17 Vet.App. at 313. Prior to the enactment of the VBA and at

the time of Gilbert, supra, the scope-of-review provisions enacted in section 4061 (now

section 7261) by the VJRA in 1988 made no reference whatsoever to section 3007(b) (the

predecessor of current section 5107(b)) but, rather, referred to review of BVA factfinding only in

terms of the "clearly erroneous" standard. In light of the lack of specificity in those VJRA-enacted

provisions, the Court in Gilbert had a sound basis for applying a deferential formulation of the

"clearly erroneous" standard and for concluding, in essence, that the Court's review of the Board's

compliance with then-section 3007(b) was limited to whether the Board had provided an adequate

statement of reasons or bases (under 38 U.S.C. § 4004(d)(1) (now 38 U.S.C. § 7104(d)(1))) for its

conclusion that the evidence preponderated against the claim or against the claimant's position on

a finding of material fact. Gilbert, 1 Vet.App. at 58 ("[w]here findings of material fact by the Board

are properly supported and reasoned, and the Board concludes that a fair preponderance of the

evidence weighs against the claims of a veteran, it would not be error for the Board to deny the

veteran the benefit of the doubt"). Although the Court later intensified its reasons-or-bases scrutiny

somewhat in Williams (Willie) v. Brown, that scrutiny did not include an evaluation of how the Board

actually applied the equipoise standard but only how it said it had applied it. Williams (Willie),

4 Vet.App. 270, 273-74 (1993) ("[i]n a case where there is significant evidence in support of an

appellant's claim, as there is here, the Board must provide a satisfactory explanation as to why the

evidence was not in equipoise").11 It is against this rather relaxed standard of review that, through

VBA § 401, Congress has now required the Court to review the entire ROA and to examine the

Secretary's determination as to whether the evidence presented was in equipoise on a particular

material fact.12

matter of jurisdiction and the latter matter under section 7261(b) defines how the Court will conduct review within its

jurisdiction. Furthermore, that new section 7261(b) directive must be read in the context of the full section 7261(a),

which commands such "tak[ing] account" in the context of evaluating BVA findings – including whether adverse

findings of fact are clearly erroneous. As explained in the text immediately following this footnote, I believe that section

7261(b) requires the Court to review the Secretary's application under that same "clearly erroneous" standard; that

requirement surpasses that imposed by the broad language of section 7252(a), which does not mention section 5107(b)

by name and which speaks only to what matters are included in the Court's jurisdiction to review.

11

See also Jackson v. West, 12 Vet.App. 422, 425, 429 (1999) (applying Williams (Willie) v. Brown,

4 Vet.App. 270, 273-74 (1993)); Gaines v. West, 11 Vet.App. 353, 359 (1998) (same).

12

See infra note 17 and accompanying text (legislative history clarifying that VBA § 401 amendments with

respect to the benefit-of-the-doubt rule require Court to provide less deferential and more searching review of Board

decisions and stating that that rule will, under VBA § 401, be given "full force"); cf. Gregory C. Sisk, The Trial [sic]

Courts of the Federal Circuit; Diversity by Design, 13 Fed. Cir. B.J. 241, 263 (2004) ("the actual textual changes to the

statute enacted . . . [in the VBA] appear to mandate moderate but nonetheless meaningful adjustment by [this Court] on

a case-by-case basis, rather than revolutionary change[;] . . . a fundamental principle of statutory interpretation is that

9

In light of this background, it appears that this new mandate supercedes the conclusion in

Gilbert that we were to review the Board's application of the equipoise standard to determine

whether that application was "arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law", pursuant to section 7261(a)(3)(A) (then section 4061(a)(3)(A) (1988)).

Gilbert, 1 Vet.App. at 57-58. Specifically, by inserting into section 7261(b)(1) the direction that the

Court evaluate the Board's application of the equipoise standard to findings of material fact,

Congress seems to have been suggesting that the section 7261(a)(4) "clearly erroneous" standard of

review should be applied as to that evaluation.13 As indicated in part I, above, the Court so

concluded in Mariano:

The outcome of the Board's application of the section 5107(b)

equipoise standard is a factual determination that this Court reviews

under the "clearly erroneous" standard. See Roberson, 17 Vet.App. at

146 ("[The Court] is not authorized to make the determination as to

whether the evidence is in equipoise and apply the

benefit[-]of[-]the[-]doubt doctrine; the Court is empowered only to

ensure that the Secretary's determination in that regard is not clearly

erroneous."). Indeed, Congress, by adding section 7261(b)(1),

directed that the Court, "[i]n making the determinations under

subsection (a)," including a determination as to whether a finding of

material fact adverse to the claimant is clearly erroneous, shall take

due account of the Secretary's application of section 5107(b)'s

equipoise standard. 38 U.S.C. § 7261(b)(1); see 38 U.S.C.

§ 7261(a)(4).

Mariano, 17 Vet.App. at 313.14

a change in statutory language presumptively effects a change in meaning").

13

The Roberson III assertion that "[t]he Secretary's application, or lack thereof, of the benefit[-]of[-]the[-

]doubt rule . . . was . . . already within the Court's review power under section 7252(a)" does not take into consideration

the difference between that which is permissible and that which is now mandated ("shall"), according to the two Veterans'

Affairs Committees, to provide for "more searching appellate review of BVA decisions" in order to give "full force to

the 'benefit of the doubt' provisions." 148 C ONG . R EC . S11337, H9003 (daily ed. Nov. 18, 2002). If the Court had

always given such "due regard", it would seem that the Roberson III order would cite some precedent on that point, but

it does not (perhaps because that "regard" has been, since Gilbert v. Derwinski, 1 Vet.App. 49 (1990), only a reasons-or-

bases check, see supra text accompanying note 11).

14

Further, our review of Board decisions under this standard and the direction to this Court to engage in a

limited form of factfinding in reviewing the Board's factfinding should be a double-edged sword: In reviewing the record

before the Secretary and the Board, the Court is not only empowered, by section 7261(a)(4) and (b)(1), to reverse a

clearly erroneous finding of fact, but is also directed, by section 7261(b)(2), to affirm a Board decision with an error that

is rendered nonprejudicial because the evidence is so overwhelmingly against the claim in question that a remand based

on that error would be superfluous. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991); see also Valiao v. Principi,

17 Vet.App. 229, 232 (2003) ("W here the facts averred by a claimant cannot conceivably result in any disposition of

the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not

10

D. VBA Legislative History

The legislative history supports the plain meaning of these provisions discussed in part II.C,

above, by strongly evidencing the intent of Congress to bring about decisive change in the scope of

this Court's review of BVA factfinding.15 That legislative history is set forth at this point essentially

in full. The House and Senate Committees on Veterans' Affairs described the new provisions

enacted by VBA § 401 as follows in an Explanatory Statement that they prepared regarding their

compromise agreement:

Senate bill

Section 501 of S. 2237 would amend section 7261(a)(4) . . .

to change the standard of review [the U.S. Court of Appeals for

Veterans Claims (CAVC)] applies to BVA findings of fact from

"clearly erroneous" to "unsupported by substantial evidence."

Section 502 would also cross-reference section 5107(b) in order to

emphasize that the Secretary's application of the "benefit of the

doubt" to an appellant's claim would be considered by CAVC on

appeal.

House bill

The House Bills contain no comparable provision.

Compromise agreement

Section 401 of the Compromise Agreement follows the

Senate language with the following amendments.

possibly change the outcome of the decision.").

15

The legitimacy of using legislative history as a method of assisting in finding the meaning of statutory

provisions whose meaning is not free from doubt is well established. See Crosby v. Nat'l Foreign Trade Council, 530

U.S. 363, 376 n.9 (2000) (relying on statements by sponsors of act to support conclusion as to statutory construction);

id. at 378 n.13 (same); id. at 382 n.17 (same); Duffield v. Robertson Stephens & Co., 144 F.3d 1182, 1192 (9th Cir.

1998) (criticizing U.S. Court of Appeals for the Fourth Circuit for "ignor[ing] the reasoning of eight Justices on the

subject of statutory analysis, [and] rely[ing instead] on a separate opinion by Justice Scalia, and partially on the basis

of that reasoning decid[ing] to disregard the legislative history"); Oregon v. Ashcroft, 192 F. Supp. 2d 1077, 1089 (D.

Or. 2002) ("'The legitimacy of legislative history as a means of interpreting statutes, at least when they are unclear, is,

rightly or wrongly, well established. Other than Justice Thomas, no Justice seems interested in adopting Justice Scalia's

rejection of legislative history or his rejection of the notion of legislative intent.'" (quoting W illiam Funk, Review Essay

Faith in Texts - Justice Scalia's Interpretation of Statutes and the Constitution: Apostasy for the Rest of Us?, 49 A D M IN .

L. R EV . 825 (1997)). It is interesting, nonetheless, that the Roberson III order, 17 Vet.App. at 141, cites Justice Scalia's

concurring opinion in Crosby, 530 U.S. at 390, rather than the majority opinion there, cited at the outset of this footnote.

11

The Compromise Agreement would modify the standard of

review in the Senate bill in subsection (a) by deleting the change to

a "substantial evidence" standard. It would modify the requirements

of the review the Court must perform when it is making

determinations under section 7261(a) . . . . Since the Secretary is

precluded from seeking judicial review of decisions of the [BVA], the

addition of the words "adverse to the claimant" in subsection (a) is

intended to clarify that findings of fact favorable to the claimant may

not be reviewed by the Court. Further, the addition of the words "or

reverse" after "and set aside" is intended to emphasize that the

Committees expect the Court to reverse clearly erroneous findings

when appropriate, rather than remand the case.

New subsection (b) [of section 7261] would maintain

language from the Senate bill that would require the Court to

examine the record of proceedings before the Secretary and BVA

and the special emphasis during the judicial process on the benefit

of the doubt provisions of section 5107(b) as it makes findings of

fact in reviewing BVA decisions. This would not alter the formula

of the standard of review on [sic] the Court, with the uncertainty of

interpretation of its application that would accompany such a change.

The combination of these changes is intended to provide for more

searching appellate review of BVA decisions, and thus give full

force to the "benefit of doubt" provision.

148 CONG . REC. S11337, H9003 (daily ed. Nov. 18, 2002) (emphasis added) (Explanatory Statement

printed in Congressional Record as part of debate in each body immediately prior to final passage

of compromise agreement).

At the time of final action on S. 2237, the bill that was ultimately enacted as the VBA, VBA

§ 401 was quite extensively explained by Senator Rockefeller, who was the Chairman of the Senate

Committee, the floor manager of the bill in the Senate, and the principal author of VBA § 401.16 In

explaining VBA § 401, he emphasized, as did the two Committees in their Explanatory Statement,

148 CONG . REC. S11337, H9007, that "the combination of" the new requirements that the Court

"examine the . . . [ROA]", consider the benefit-of-the-doubt rule, and "make[] findings of fact in

reviewing BVA decisions" is "intended to provide for more searching appellate review of BVA

16

Amendments to section 7261 (dealing with all the same elements as did VBA § 401) were included in S. 2079

as introduced by Senator Rockefeller on April 9, 2002. S. 2079, 107th Cong., 2d Sess., § 2. The special responsibilities

of a Committee Chairman in explaining a bill emanating from that committee have been recognized even by the Supreme

Court's greatest skeptic as to the utility of legislative history. Conroy v. Aniskoff, 507 U.S. 511, 521-22 (1993) (Scalia,

J., concurring in the judgment) ("This comment cannot be dismissed as the passing remark of an insignificant Member,

since the speaker was the Chairman of the House Judiciary Committee, the committee that reported the bill to the House

floor.").

12

decisions and thus give full force to the 'benefit[-]of[-]the[-]doubt' provision." 148 CONG . REC.

S11334 (emphasis added). Chairman Rockefeller concluded that the Court should "reverse clearly

erroneous findings when appropriate, rather than remand the case", and declared that the "new

language in section 7261 would overrule . . . Hensley."17 148 CONG . REC. S11334. His statement

is particularly significant (1) because only the Senate had passed provisions to amend the Court's

section 7261 scope-of-review provisions (in S. 2237),18 and the Committees on Veterans' Affairs

explained that VBA § 401 generally "follows the Senate language", and (2) because there is no

legislative history that is inconsistent with his statement. 147 CONG . REC. S11337, H9003.

Representative Evans, the ranking minority member of the House Committee, spoke "in strong

support of the bill S. 2237" and explained that "the bill . . . clarifies the authority of the Court of

Appeals for Veterans Claims to reverse decisions of the [BVA] in appropriate cases and requires

[that] the decisions be based upon the record as a whole, taking into account the pro-veteran rule

known as the 'benefit of the doubt.'" 148 CONG . REC. H9003 (emphasis added).

E. Meaning of "Clearly Erroneous"

Based on the plain language of the section 7261(a)(4) and (b)(1) amendments and their

emphatic legislative history, I conclude (1) that Congress has tasked the Court with the responsibility

of evaluating BVA factfinding adverse to a claimant by reviewing all evidence in the ROA in order

17

Senator Rockefeller stated in full regarding VBA § 401:

Section 401 of the Compromise Agreement would maintain the current

"clearly erroneous" standard of review, but modify the requirements of the review

the court must perform when making determinations under section 7261(a) of

title 38. CAVC would be specifically required to exam ine the record of

proceedings – that is, the record on appeal – before the Secretary and BVA.

Section 401 would also provide special emphasis during the judicial process to the

"benefit of the doubt" provisions of section 5107(b) as CAVC makes findings of

fact in reviewing BVA decisions. The com bination of these changes is intended

to provide for m ore searching appellate review of BVA decisions, and thus give

full force to the "benefit of doubt" provision. The addition of the words "or

reverse " after "and set aside" in section 7261(a)(4) is intended to emphasize that

CAVC should reverse clearly erroneous findings when appropriate, rather than

remand the case. This new language in section 7261 would overrule the recent

U.S. Court of Appeals for the Federal Circuit decision of Hensley v. West,[ 212

F.3d 1255 (Fed. Cir. 2000),] which emphasized that CAVC should perform only

limited, deferential review of BVA decisions, and stated that BVA fact-finding "is

entitled on review to substantial deference." However, nothing in this new language

is inconsistent with the existing section 7261(c), which precludes the court from

conducting trial de novo when reviewing BVA decisions, that is, receiving evidence

that is not part of the record before BVA.

148 C O N G . R EC . S11334 (remarks of Sen. Rockefeller) (emphasis added).

18

S. 2237 was passed by the Senate on September 26, 2002. 148 C O N G . R EC . S9556, S9559 (daily ed. Sept. 26,

2002).

13

to assess the Board's application of the equipoise standard and (2) that if the Court, based on that

assessment, concludes that Secretary's section 5107(b) application was clearly erroneous and thus

unlawful then the Court is expressly empowered to reverse that finding – that is, not only to declare

it wrong but also to correct it.19 See Mariano, 17 Vet.App. at 314-17 (reversing two BVA findings

of fact as "clearly erroneous application[s] of the section 5107(b) equipoise standard"); cf. id. at 314

(as to another BVA finding of fact, setting aside as "clearly erroneous" but not reversing "Secretary's

application of the section 5107(b) equipoise standard"). This process of applying the "clearly

erroneous" standard to the Board's application of the section 5107(b) equipoise standard, see

Mariano and Roberson III, both supra, raises the question (not previously addressed) whether the

"plausible basis in the record" and "only permissible view of the evidence" tests set forth in Gilbert,

1 Vet.App. at 52-53, remain viable, if they ever were viable, under the "clearly erroneous" standard

as proper measures for this Court's review of BVA factfinding in light of the three new section 7261

mandates.

Although at the advent of this Court's exercise of judicial review the Court had good reason

to attempt to follow precedent regarding the scope of review for Article III appellate courts under

Rule 52(a) of the Federal Rules of Civil Procedure, the post-VBA statutory scheme in chapter 72 of

title 38, U.S. Code, is unique to this Court. Specifically, the VBA amendments, particularly that this

Court apply the "clearly erroneous" standard in our review of the Board's application of the

section 5107(b) equipoise standard, see Mariano and Mitchell, both supra, render the "plausible

basis in the record" and "only permissible view of the evidence" formulas from Gilbert unsuited for

application to the Board's process of assessing the weight of positive and negative evidence. A

reexamination of Gilbert, some of our precedential decisions since Gilbert that have engrafted new

language into its "plausible basis" holding, the very Supreme Court precedents on which Gilbert had

relied, and recent Supreme Court and Federal Circuit precedent has led me to conclude that our

"clearly erroneous" review should be carried out in accordance with the primary (less deferential)

definition that Gilbert drew from the Supreme Court's opinion in United States Gypsum Co.:

A finding is "clearly erroneous" when although there is evidence to

support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.

Gilbert, 1 Vet.App. at 52 (emphasis added) (quoting U.S. Gypsum Co., supra). This criterion is the

one used by both the Supreme Court and the Federal Circuit in the Zurko litigation, which was

concluded in 2000, only two years before the VBA's enactment, and was cited in the Senate

Committee report on S. 2237. S. Rep. No. 107-234, 107th Cong., 2d Sess. 18 n.1. In that litigation,

the Supreme Court explained the "clearly erroneous" standard as meaning "whether a reviewing

judge has a 'definite and firm conviction' that an error has been committed." Dickinson v. Zurko,

527 U.S. 150, 162 (1999); see In re Zurko, 142 F.3d 1447, 1449 (Fed. Cir. 1998) (en banc) (stating

19

See Atl. Coast Line R.R. Co. v. St. Joe Paper Co., 216 F.2d 832, 833 (5th Cir. 1954) (defining "reverse a

judgment" as "to overthrow it by a contrary decision, to make it void, to undo or annul it for error").

14

that "we affirm decisions as long as we lack a definite and firm conviction that a mistake has been

made").20

Using the definite-and-firm-conviction criterion, rather than the "no plausible basis in the

record" standard, would correct the caselaw creep that began with Gilbert itself and has made it

increasingly difficult for the Court to conclude that a BVA finding of fact is "clearly erroneous"

under section 7261(a)(4). An example of the unfortunate direction that the Court's caselaw has taken

is provided by Hicks v. Brown, which, five years after its debut in Gilbert, characterized the "no

plausible basis in the record" criterion as requiring that the evidence be "uncontroverted in the

appellant's favor" and that there be "absolutely no plausible basis" in the record for the Board's

decision before a BVA finding of fact may be reversed. Hicks, 8 Vet.App. 417, 422 (1995). These

quoted words and the corresponding heightened standard in Hicks were derived from Hersey v.

Derwinski, 2 Vet.App. 91, 95 (1992), but Hersey does not support the use of those criteria as a basis

for denying reversal. Rather, in Hersey the Court reversed a Board decision denying a rating of total

disability based on individual unemployability (TDIU) and, in doing so, noted that "[t]here is

absolutely no plausible basis for the BVA's statement that [the veteran's] disability was 'not of

sufficient severity as to preclude hi[s] engaging in substantially gainful employment consistent with

his education and occupational experience'" and that the BVA's denial of a TDIU rating was "clearly

erroneous in light of the uncontroverted evidence in [the] appellant's favor." Hersey, supra (quoting

BVA decision). However, the Court in Hersey (1) had already defined the "clearly erroneous"

standard as "the definite and firm conviction that a mistake has been committed" criterion (quoting

U.S. Gypsum Co., supra, as it had been quoted in Gilbert, 1 Vet.App. at 52), and (2) had also already

explained that a finding of fact cannot be found clearly erroneous "[i]f the [factfinder]'s account of

the evidence is plausible in light of the record viewed in its entirety" or where such a review of the

evidence shows that "there are two permissible views of the evidence", Hersey, 2 Vet.App. at 94

(quoting Anderson, supra, as quoted in Gilbert, supra). It is thus clear that the use in Hersey of the

"absolutely no plausible basis" and "uncontroverted" evidence terminology was intended only to

illustrate how unfounded the Board's factfinding was in that case, rather than, as Hicks used it, to

establish a new, more stringent standard for "clearly erroneous" review.

Between the issuance of Hersey and Hicks, the Court put all the Gilbert language together

in Harder v. Brown, stating:

20

Utilizing this definition is consistent (1) with the characterizations of the "clearly erroneous" standard as less

deferential than the "substantial evidence . . . on the record" standard in the Administrative Procedure Act (APA),

5 U.S.C. § 706(2)(E), and (2) with the fact that the the original Senate-passed version of S. 2237 had adopted the

"substantial evidence of record" standard drawn from the APA and that that standard was rejected in the final

compromise that became VBA § 401. S. 2237, 107th Cong., 2d Sess., § 501 (amending section 7261(a)(4)); 148 C O N G .

R EC . S9558-9 (Senate passage of reported bill); see also 148 C O N G . R EC . S11337, H9006 (Committees on Veterans'

Affairs Explanatory Statement explaining that compromise agreement "would not alter the formula of the standard of

review [(that is, the "clearly erroneous" formula)] on [sic] the Court, with the uncertainty of interpretation of its

application that would accompany such a change"); S. Rep. No. 107-234, 107th Cong., 2d Sess. 18 n.1 (recognizing that

Supreme Court in Dickinson v. Zurko, 527 U.S. 150, 162 (1999), had "interpreted" the "'substantial evidence' formula

. . . to be slightly more deferential than a traditional 'clearly erroneous' standard").

15

After a review of the record, we conclude that there is no

plausible basis for the BVA's decision. "[B]ecause there is no

evidence to support the BVA determination, it is obvious that a

mistake has been committed, the finding is not plausible, there can be

only one permissible view of the evidence, and, thus, the finding is

clearly erroneous." Karnas v. Derwinski, 1 Vet.App. 308, 311

(1991); see also Caldwell [v. Derwinski], 1 Vet.App. [466,] 470

[(1991)].

Harder, 5 Vet.App. 183, 189 (1993). As in Hersey, this articulation is appropriate when there is no

evidence against the claimant's position on a particular question of material fact, because it

demonstrates the gravity of the Board's error. This articulation should not be mistaken for the

appropriate standard of review, however; for example, in Mariano,17 Vet.App. at 314-17, the Court

reversed two findings of fact even though the record contained evidence against the claimant's

position, and thus the evidence in support of the claimant's position could not be considered

"uncontroverted", Hicks, supra; see U.S. Gypsum, supra (calling for a "clearly erroneous"

determination "although there is evidence to support" a lower court's finding); see also Anderson,

supra (calling for review "in light of the record . . . in its entirety").

Moreover, a close reading of the Supreme Court's actual language in Anderson, like a close

reading of the wording in U.S. Gypsum, makes clear that the phrase "if there is a 'plausible' basis in

the record" in the Gilbert holding omitted the critical words "in light of the record viewed in its

entirety" from Anderson, 470 U.S. at 574, and "although there is evidence to support [the lower

court's finding]" from U.S. Gypsum, supra. Thus, it appears that Gilbert had already strayed afield

from the Supreme Court's actual language and paved the way for the Hicks/Hersey detour and the

evolution of a practice in some cases of this Court's focusing only on a single or a few pieces of

negative evidence as providing a basis for affirmance regardless of the overall strength of the

evidence in favor of a claim. The Court's opinion in Mariano, supra, however, showed the error of

such an approach.

Accordingly, I believe that, as a logical evolution of Roberson III and Mariano, both supra,

the Court should issue an en banc opinion holding that under the VBA § 401 amendments the

Board's application of section 5107(b) is clearly erroneous when, after reviewing the entire evidence

of record, the Court has "a definite and firm conviction that a mistake has been committed" by the

Board in making a material finding of fact adverse to the claimant – that is, when we have a definite

and firm conviction that the evidence on that question did not preponderate against the claimant's

16

position.21 In that situation, the Court should declare the BVA factfinding unlawful and decide

whether to set it aside and remand or to reverse it. 38 U.S.C. § 7261(a)(4). In my view, the Court

can make that decision only by assessing the evidence in the context of the section 5107(b) equipoise

standard in order to determine whether it is appropriate in a given case for the Court to reverse a

finding of fact – that is, declare the correct finding of fact. See supra note 17 and accompanying

text. This assessment is, in effect, the process that the Court recently followed in Mariano, when,

as noted above, it held that the Board's application of the section 5107(b) equipoise standard as to

three findings of fact was clearly erroneous; the Court reversed two of those findings and set aside

(but did not reverse) and remanded one finding because evidence in the claimant's favor on that

question was not present. Compare Mariano, 17 Vet.App. at 316-17 and id. at 315-17, with id. at

314.

Finally, I note that, to the extent that there is ambiguity in the statutory language, as the

Roberson III order maintains, 17 Vet.App. at 139-40, the analysis in this separate statement was

formulated in light of the direction of the Supreme Court to resolve ambiguity in a veterans benefits

statute in favor of the claimant. Brown v. Gardner, 513 U.S. 115, 118 (1994) (directing that

reasonable doubt in statutory interpretation is to be ''resolved in the veteran's favor"); Kilpatrick,

16 Vet.App. at 6 (quoting Brown v. Gardner, supra); see also Jones (Ethel) v. West, 136 F.3d 1296,

1299 n.2 (Fed. Cir. 1998); Allen (William) v. Brown, 7 Vet.App. 439, 446 (1995) (en banc).

Moreover, it is a longstanding maxim of statutory interpretation that remedial legislation, such as

VBA § 401, is to be interpreted broadly in order to effectuate its basic purpose. See Smith (William)

v. Brown, 35 F.3d 1516, 1525 (Fed. Cir. 1994) ("courts are to construe remedial statutes liberally to

effectuate their purposes . . . [and v]eterans benefits statutes clearly fall in this category"). Thus, I

see no basis for the Court to choose to construe narrowly the VBA provisions given their proclaimant

remedial purpose. See Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000) ("canons of

construction . . . require us to give effect to the clear language of a statute and avoid rendering any

portions meaningless or superfluous"). When Congress writes legislation that is less than completely

clear, it is the judiciary's role to make the best of the language that is enacted and to seek to find a

reasonable interpretation of the statutory text consistent with the goals that Congress has indicated

it sought to achieve with that legislation. Only if, after undertaking this analysis, the only reasonable

conclusion is that Congress, notwithstanding its intention, failed to provide statutory language that

can be fairly interpreted as achieving its basic legislative purpose should a court tell Congress "nice

try, but you haven't done the job you apparently intended to do."

III. Conclusion

21

In applying the "clearly erroneous" standard, the Board's determinations about the credibility of live-witness

testimony before the Board (such as that presented by the appellant here (Record at 443-64)) must be afforded substantial

deference. See Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985) (holding that trial judge's choice "if not

internally inconsistent", between credible testimony of live witnesses, "each of whom has told a coherent and facially

plausible story that is not contradicted by extrinsic evidence, . . . can virtually never be clear error"); Zenith Radio Corp.

v. Hazeltine Research, Inc., 395 U.S. 100, 123 n.18 (1969); United States v. Yellow Cab Co., 338 U.S. 338, 341-42

(1949).

17

Because I believe that the question of the meaning of the VBA § 401 amendments has not

been clearly and definitively addressed by our Court in light of our decisions in Gilbert, Roberson

III, and Mariano, and has been forcefully and effectively argued by the appellant in his brief, I voted

for full-Court examination of these matters. At a minimum, I would require a response from the

Secretary before the Court votes on the appellant's motion for initial full-Court consideration. See

U.S. VET . APP . R. 35(g).

KASOLD, Judge, dissenting: I respectfully dissent from the denial of en banc consideration

in this case. The appellant seeks en banc review so that the Court might address (1) our application

of the "clearly erroneous" standard of review; (2) the benefit-of-the-doubt rule; and (3) the doctrine

that once this Court finds an issue warranting remand, we generally will not address other issues (aka

the Best rule). I believe en banc review is warranted because these issues are of exceptional

importance to our judicial review and there is a lack of uniformity or clarity in our caselaw in each

of these areas. See U.S. VET . APP . R. 35(c) (motions for full-Court decision will ordinarily not be

granted "unless such action is necessary to secure or maintain uniformity of the Court's decisions or

to resolve a question of exceptional importance").

A. "Clearly Erroneous" Standard of Review

The meaning of the term "clearly erroneous" was first set out by this Court in Gilbert v.

Derwinski, 1 Vet.App. 49, 52-53 (1990). Gilbert cites to United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948), for the definition of this term: "A finding is 'clearly erroneous' when

although there is evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed." Gilbert then cites to Anderson v.

City of Bessemer City, 470 U.S. 564, 573-74 (1985), to illustrate when a court might not have a firm

conviction:

This standard plainly does not entitle a reviewing court to reverse the finding of the

trier of fact simply because it is convinced that it would have decided the case

differently. The reviewing court oversteps the bounds of its duty under Rule 52(a)

if it undertakes to duplicate the role of the lower court. "In applying the clearly

erroneous standard to the findings of a district court sitting without a jury, appellate

courts must constantly have in mind that their function is not to decide factual issues

de novo." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969).

If the district court's account of the evidence is plausible in light of the record viewed

in its entirety, the court of appeals may not reverse it even though convinced that had

it been sitting as the trier of fact, it would have weighed the evidence differently.

Where there are two permissible views of the evidence, the factfinder's choice

between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338

U.S. 338, 342 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc.,

456 U.S. 844 (1982).

Gilbert, 1 Vet.App. at 52 (quoting Anderson, supra).

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Although Gilbert favorably cited to the Supreme Court’s definitions of the "clearly

erroneous" standard, Gilbert subsequently stated that "if there is a plausible basis in the record for

the factual determinations of the BVA, even if this Court might not have reached the same factual

determinations, we cannot overturn them." Id. at 53. It is this standard that is primarily used

throughout our cases. Whether or not the Gilbert standard was designed to be different from that

enunciated by the Supreme Court, the fact remains it is. The Supreme Court stated that a "finding

is 'clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been committed." Gypsum,

333 U.S. at 395 (emphasis added), quoted favorably in Concrete Pipe & Prods. of Cal., Inc., v.

Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622-23 (1993). Thus, under the standard

established by the Supreme Court, even when there is evidence to support a lower tribunal’s finding,

the reviewing court can reverse it if it has a definite and firm conviction that a mistake has been

made, based on the entire record. By contrast, under the Gilbert standard, if there is a plausible basis

in the record for the decision below, it cannot be overturned.

The Supreme Court also stated that a decision below was not clearly erroneous when that

decision provided an "account of the evidence [that] is plausible in light of the record viewed in its

entirety." Anderson, supra (emphasis added). This requires both (1) an explanation of the evidence

and (2) that the explanation be plausible "in light of the record viewed in its entirety." Id. Thus, a

plausible basis in the record is not enough to preclude a reversal of a finding; there must be an

explanation that is plausible "in light of the record viewed in its entirety." Of course, if there is a

plausible explanation in light of the entire record, the Court cannot substitute its own, alternate

plausible basis for that of the lower tribunals. Id.; see also Yellow Cab, 338 U.S. at 342.

Although the Gilbert standard is generally used in this Court, it is not uniformly applied.

There are a number of cases applying an even stricter, dual-based definition of the "clearly

erroneous" standard that permits reversal only when "there is absolutely no plausible basis" for the

BVA decision and where that decision "is clearly erroneous in light of the uncontroverted evidence."

See, e.g., Kay v. Principi, 16 Vet.App 529, 533 (2002); Shoffner v. Principi, 16 Vet.App 208, 212

(2002); Pentecost v. Principi, 16 Vet.App 124, 129 (2002).

The genesis and development of this two-pronged standard is a classic example of the

evolution of case meanings over time. The phrase "absolutely no plausible basis" was first used in

our cases in Hersey v. Derwinski, 2 Vet.App. 91, 95 (1992). After restating the Supreme Court’s

definitions of the "clearly erroneous" standard, as well as noting it as the Gilbert standard,1 the

Hersey Court then noted that in the case before it "[t]here is absolutely no plausible basis for the

BVA’s statement" and then found that the BVA decision "was clearly erroneous in light of the

uncontroverted evidence in appellant’s favor." Id. at 95. The "absolutely no plausible basis" and

1

The Hersey court made no mention of the standard actually enunciated in Gilbert and applied in most of our

cases, i.e., "if there is a plausible basis in the record for the factual determinations of the BVA, even if this Court might

not have reached the same factual determinations, we cannot overturn them," Gilbert v. Derwinski, 1 Vet.App. 49, 53

(1990). See Hersey v. Derwinski, 2 Vet.App. 91, 93-95 (1992).

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the "uncontroverted evidence" comments were not intended to be a standard of review. Rather, they

were the Court’s view of the evidence before it; i.e., there was not only no plausible basis in the

record as a whole for the Board’s finding, but there was also absolutely no basis for it given the

uncontroverted evidence against it. For whatever reasons, numerous single-judge decisions began

citing Hersey for this two pronged, stricter proposition. See, e.g., Abrams v. Brown, No. 92-435,

1993 WL 382114 (Vet. App. Sept. 22, 1993); Moon v. Brown, No. 91-2044, 1994 WL 44139 (Vet.

App. Feb. 01, 1994). This proposition later made its way into the panel decisions noted above

(Pentecost, Shoffner, and Kay, all supra).

I suspect that the Gilbert standard and the evolutionary Hersey standard were both

unintentional deviations from the Supreme Court’s definition of "clearly erroneous." Regardless,

this is an exceptionally important issue on which we do not have uniformity within the Court, and

therefore en banc review is warranted.2

B. The Benefit of the Doubt

Section 5107(b) of title 38, U.S. Code, requires the Secretary to consider all the information

and evidence in a veteran's case and, if "there is an approximate balance of positive and negative

evidence regarding any issue material to the determination of a matter," to give the benefit of the

doubt to the veteran/claimant. This Court established early on that the Secretary’s application of the

benefit-of-the-doubt rule, as finally applied by the Board, would be reviewed for whether it was

"'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Gilbert,

1 Vet.App. at 57-58.

What was once well settled, however, is now open to question as a result of the panel

decisions in Roberson v. Principi, 17 Vet.App. 135, 146 (2003), and Mariano v. Principi,

17 Vet.App 305, 313 (2003), which state the standard of review of the benefit-of-the-doubt rule as

"clearly erroneous." Neither case cites a basis for changing the standard of review, with Mariano

simply citing Roberson. See Mariano, supra. Indeed, neither case cites Gilbert. Moreover,

Roberson gives the impression that "clearly erroneous" was always the standard of review for the

Secretary's application of the benefit-of-the-doubt rule. Id. There is a conflict in our caselaw on this

significant issue and it should be resolved en banc.

C. The Best Doctrine

The panel decision in Best v. Principi, 15 Vet.App. 18, 19 (2001) (per curiam order),

proclaimed that "[f]rom the outset, it has been the practice of this Court that when a remand is

ordered because of an undoubted error that requires such a remedy, the Court will not, as a general

2

Although I believe the differences between the Gilbert and Hersey standards of review are significant, to the

extent some view them as subtle this should not preclude review. The Supreme Court noted there was a subtle difference

between the "substantial evidence" and the "clearly erroneous" standards of review, but still found it important to apply

the correct standard. Dickinson v. Zurko, 527 U.S. 150, 162-63 (1999).

20

rule, address other putative errors raised by the appellant." See also Mahl v. Principi, 15 Vet.App.

37 (2001) (per curiam order) (acknowledging departures from the Best doctrine, but maintaining they

are the exception rather than the rule). In support of its proposition, Best cites directly to Dunn v.

West, 11 Vet.App. 462, 467 (1998), and further refers the reader to Aronson v. Brown, 7 Vet.App.

153, 155 (1994), and Mokal v. Derwinski, 1 Vet.App. 12 (1990). A closer look, however, finds that

none of these cases supports the broad proposition announced in Best. Indeed, Dunn supports a

much narrower proposition and almost inverse general rule.

Dunn fully addressed the appellant’s assertion on appeal that the Board had erred and

affirmed the Board on three claims and remanded the fourth. Dunn, 11 Vet.App. at 467-68. The

fourth claim was remanded because the Court found that the Board had failed to actually obtain

records that appeared to be relevant to that claim. These records were deemed to be constructively

before the Board, and therefore it was error not to consider them; remand was appropriate. Id.

Because the records would have to be obtained and considered on remand, the additional assertions

that the Secretary failed in his duty to assist by failing to secure the records or that the veteran was

denied due process by the Secretary's failing to secure those records were rendered moot. Nothing

in Dunn stands for the proposition that this Court had a practice of not addressing other claims

simply because one claim warranted a remand; Dunn suggests only that those issues mooted by the

remand are not to be considered.

It also seems that Best actually turned the Dunn approach on its head, with its "recognition"

of a general rule that if a finding or holding on one claim or issue causes remand of a case, none of

the other claims or issues generally should be decided at that time by the Court. Although Dunn

refused to address additional issues that were mooted by decision on one issue, application of the

Best rule does not depend on mooting an issue; it simply remands all claims and issues in the case

to the Board where they all can be reconsidered. See Fletcher v. Derwinski, 1 Vet.App. 394, 397

(1991) ("A remand is meant to entail a critical examination of the justification for the decision. The

Court expects that the [Board] will reexamine the evidence of record, seek any other evidence the

Board feels is necessary, and issue a timely, well-supported decision in this case.").

The other cases relied on by Best similarly do not support the general rule as announced in

Best. Aronson stands for the sole proposition that when a claim is rendered moot, the Court no

longer has jurisdiction over that claim or any matters appurtenant to that claim. Aronson, 7 Vet.App.

at 155-56. Mokal stands for the proposition that this Court has adopted the case-or-controversy

jurisdictional restraints imposed by Article III of the U.S. Constitution. Mokal, 1 Vet.App. at 15.

Both cases support the general Dunn approach, i.e., not addressing issues mooted by a remand, but

not the broad rule enunciated in Best that if one issue warrants remand none of the others generally

should be addressed.

Best further cites to a number of other courts that "regularly decline to address the remaining

allegations of error if the court orders a remand and a new trial based on any one allegation of error."

Best, 15 Vet.App. at 19. Reliance on these cases for adopting the broad principle enunciated in Best

is misplaced. For one, a new trial is far different than the remand of a case from this Court to the

21

Board. In a new trial, the entire process is redone, whereas during new proceedings after a remand

from this Court, the record below remains intact; it can be augmented, but it is not redone.

Moreover, with the exception of the issue on which the remand was based and those, as in Dunn, that

were mooted by the remand, I fail to see the basis for believing that the Board will render a different

decision on any remaining issues. This leaves the veteran with the prospect that his case will be

remanded as many times as he has separate claims or independent issues, before he can get a final

decision. See Brambley v. Principi, 17 Vet.App. 20, 25-28 (2003) (Steinberg, J., concurring).

Unlike the moot issues in Dunn, the issues and claims remanded under the Best construct remain

very much alive.

Finally, in addition to being, at best, a stretch from the Dunn case, the Best principle is

applied inconsistently and without uniformity in the Court. Compare, e.g., Best and Mahl, both

supra, with Pelegrini v. Principi, 17 Vet.App. 412, 423-24 (2004) (remanding for compliance with

38 U.S.C. § 5103(a) but also addressing another argument raised in case), and Moran v. Principi,

17 Vet.App. 149, 155-56 (2003) (remanding for inadequate reasons or bases, but also addressing

appellant's arguments regarding 38 C.F.R. § 3.304(f)); see also Brambley, supra (Steinberg, J.,

concurring) (enumerating other remandable errors, outside of those addressed by majority option,

that without having been so addressed might reoccur on readjudication). This issue is important and

there is a lack of uniformity in this area within our cases, both warranting clarification by the en banc

Court.3

For the foregoing reasons, I respectfully dissent.

3

See also Mahl v. Principi, 15 Vet.App. 37, 40-47 (2001) (per curiam order) (Steinberg, J., dissenting) (noting

additional infirmities in the Best rule).

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