Edward R. Andrews, Jr. v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 98-1849

EDWARD R. ANDREWS, JR., APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided June 29, 2004 )

Kenneth M. Carpenter, of Topeka, Kansas, was on the pleadings for the appellant.

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Joan E.

Moriarty, Deputy Assistant General Counsel; and Patricia Trujillo, all of Washington, D.C., were

on the pleadings for the appellee.

Before IVERS, STEINBERG, and GREENE, Judges.

GREENE, Judge, filed the opinion of the Court. STEINBERG, Judge, filed an opinion

concurring in part and dissenting in part.

GREENE, Judge: The veteran, Edward R. Andrews, Jr., appealed through counsel a

September 8, 1998, Board of Veterans' Appeals (Board) decision that found no clear and

unmistakable error (CUE) in a July 1983 VA regional office (RO) decision that granted him service

connection for post-traumatic stress disorder (PTSD) at a disability rating of 10%, or in a January

1985 RO decision that increased the rating for his service-connected PTSD from 10% to 30%.

Record (R.) at 3. On January 24, 2000, the Court, by single-judge order, dismissed Mr. Andrews'

appeal on the basis that he had failed to allege any errors in the Board's decision and therefore had

abandoned the only issues addressed by the Board. Andrews v. West, 17 Vet.App. 337 (2000) (table).

Thereafter, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) vacated this Court's

January 2000 order and directed the Court to "decide the proper standard(s) for [our] review of the

Board's determination in this case respecting CUE and then to decide whether under the applicable

standard of review the denial of the CUE claim was reversible error." Andrews v. Principi,

25 Fed.Appx. 997, 998 (Fed. Cir. 2001).

On February 27, 2003, the Court, in a single-judge memorandum decision, affirmed the

September 8, 1998, Board decision. Andrews v. Principi, No. 98-1849, 2003 WL 1791207 (Vet.

App. Feb. 27, 2003). On March 14, 2003, the appellant, through counsel, filed a motion for

reconsideration or, in the alternative, for a panel decision. On July 31, 2003, the Court, in a single-

judge order, directed the Secretary to respond to the appellant's motion; his response was received

on September 4, 2003. On March 23, 2004, the single judge denied reconsideration, but the panel

granted the motion for a panel decision. The February 27, 2003, single-judge memorandum decision

is withdrawn, and this opinion is substituted in its place. Because the Court finds no merit in the

appellant's arguments, the Board decision will be affirmed.

I. FACTS

Mr. Andrews served on active duty in the U.S. Army from October 1966 to March 1969,

including service in Vietnam. R. at 15. A 1974 private hospital discharge summary listed diagnoses

of a suicide attempt, depressive reaction, and schizoid personality. R. at 58. A November 1976 VA

medical record listed a diagnosis of depression, and stated that the veteran "[h]as spent most of [the]

time depressed to some extent for [the] last 6-7 y[ea]rs." R. at 64. Other VA medical records from

November 1976 also indicated treatment for depression. R. at 66-71.

A January 1981 VA medical record noted that Mr. Andrews had been admitted to a VA

hospital that month, and contained diagnoses of transitory atypical psychosis, PTSD, alcohol abuse

in remission, and a passive aggressive personality disorder. R. at 83. After participation in a

"Vietnam Stress Group", he was discharged with a prognosis of "[f]air to good." R. at 84. He

submitted a statement detailing his experiences in Vietnam (R. at 86-87) and was scheduled for a

VA medical examination, for which he failed to report (R. at 89, 91). As a result, in May 1981, an

RO denied his claim, which appears to have been inferred from his prior statement (R. at 86-87).

R. at 93.

2

In March 1983, Mr. Andrews sought to reopen his claim. R. at 96. The RO reopened his

claim and in July 1983 awarded him service connection for PTSD, at a 10% rating. R. at 181. It

appears that that decision was not appealed. See R. at 1-348. In September 1984, he asked for an

increased rating for his service-connected PTSD. R. at 183. A December 1984 VA examination

report recorded a diagnosis of PTSD, "severe and chronic." R. at 203-03. A January 1985 RO

decision increased Mr. Andrews' PTSD rating from 10% to 30%. R. at 205-06. That decision

apparently was also not appealed. See R. at 1-348.

In March 1995, Mr. Andrews sought a permanent total disability rating and argued that there

was CUE in both the July 1983 and January 1985 RO decisions. R. at 297-98. A June 1995 RO

decision awarded him a permanent and total rating for PTSD but found no CUE in either RO

decision, after stating that Mr. Andrews' "assert[ion is] no more than a disagreement over matters

of judgment and on this basis doesn't meet the regulatory definition of" CUE. R. at 307. In the

September 1998 Board decision here on appeal, the Board concluded that, on the basis of the law

and evidence in existence at the time, both the July 1983 and January 1985 RO decisions were

correct, and that there was therefore no CUE in either decision. R. at 11-12. The Board further

stated:

The arguments by the veteran and his representative for CUE in the 1983 and 1985

[RO] decisions are no more than a simple disagreement with how the VA weighed

and evaluated the facts, and as such, this does not rise to the level of CUE. The

Court has stated that it must always be remembered that CUE is a very specific and

rare kind of "error." It is the kind of error, of fact or law, that when called to the

attention of later reviewers compels the conclusion, to which reasonable minds could

not differ, that the result would have been manifestly different but for the error. Fugo

v. Brown, 6 Vet.App. 40, 43 (1993). The veteran has not pointed to such error in the

subject [RO] decisions, and the Board is unable to discern such error.

R. at 12. Mr. Andrews then appealed to this Court.

In January 2000, this Court, in a single-judge order, dismissed the appeal from the Board's

September 1998 decision; the Court stated:

This Court has consistently held that any claims or issues not pursued on

appeal are considered abandoned. See Johnston v. Brown, 10 Vet.App. 80, 86

(1997); Phillips v. Brown, 10 Vet.App. 25, 27 (1997); Watai v. Brown, 9 Vet.App.

441, 443 (1996); Bucklinger v. Brown, 5 Vet.App. 435 (1993). Here, the appellant

has failed to allege any errors in the Board's decision and thus abandons the only

3

issues addressed by the Board. On the other hand, Mr. Andrews' counsel, citing

Luallen v. Brown, 8 Vet.App. 92 (1995)[,] as legal authority, contends that questions

of CUE are questions of law and thus subject to this Court's de novo review. . . . But

the Court cannot discern in Luallen any valid basis for that position. Moreover,

despite counsel's years of seasoned practice before this Court, he has not

acknowledged case law that is contrary to this position or referred to controlling

precedent.

Andrews v. West, supra. In December 2001, the Federal Circuit vacated this Court's January 2000

order and remanded the case "for a disposition on the merits in accordance with this opinion,

including the Veterans Court's standard of review for the disposition by the Board of Andrews' CUE

claim." Andrews v. Principi, 25 Fed.Appx. at 998-999. The Federal Circuit stated:

While Andrews may not explicitly state "the Board erred," the fact that he is

challenging the Board's decision is clear, as the Board affirmed the [RO's] decision

denying the CUE claim. Andrews stated in his brief to the Veterans Court that

"contrary to both the [RO] and BVA's assertion, such a basis of CUE [,i.e, one

alleging that the RO failed to consider all relevant facts of record in making its

determination as to a disability rating,] is valid and does not constitute a 'dispute as

to how the evidence was weighed.'" Appellant's Brief to Veterans Court at 11. This

language clearly demonstrates that Andrews is indeed challenging the determination

of the Board that all his [CUE] claim did was allege a defect in how the evidence was

weighed. Clearly, Andrews was asserting that the Board erred in not discerning

[CUE]. Therefore, it was error for the Veterans Court to dismiss the case on the

ground that Andrews had failed to allege error in the Board's decision.

Additionally, in contending that the Board's decision was erroneous, Andrews

argued that the Veteran's Court had to review this decision de novo, asserting that a

determination respecting [CUE] is a question of law. We agree that Andrews clearly

raised a question of law, namely: the proper standard of review for [CUE], which

clearly falls within the Veterans Court's jurisdiction. See 38 U.S.C. § 7261(a)(1) . . . .

Accordingly, we remand the case to the Veterans Court for it to decide the

proper standard(s) for its review of the Board's determination in this case respecting

CUE and then to decide whether under the applicable standard of review the initial

denial of the CUE claim was reversible error.

Andrews v. Principi, 25 Fed.Appx. at 998.

4

II. ANALYSIS

Section 5109A of title 38, U.S. Code, provides that "a decision by the Secretary under this

chapter is subject to revision on the grounds of [CUE]." 38 U.S.C. § 5109A. If the evidence

establishes the error, "the prior decision shall be reversed or revised." Id. Section 3.105(a) of title

38, Code of Federal Regulations, provides that "[p]revious determinations which are final and

binding . . . will be accepted as correct in the absence of [CUE]." 38 C.F.R. § 3.105(a) (2003). A

motion by a claimant that there was CUE in a previous RO decision is a collateral attack on that

decision. See Smith (William) v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). Where evidence

establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a).

In Russell v. Principi, the Court defined CUE as follows:

Either the correct facts, as they were known at the time, were not before the

adjudicator or the statutory or regulatory provisions extant at the time were

incorrectly applied. . . . [CUE] is the sort of error which, had it not been made,

would have manifestly changed the outcome . . . [, an error that is] undebatable, so

that it can be said that reasonable minds could only conclude that the original

decision was fatally flawed.

Russell, 3 Vet.App. 310, 313 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir.

1999); Damrel v. Brown, 6 Vet.App. 242, 245 (1994) (quoting Russell, 3 Vet.App. at 313-14). A

CUE allegation must identify the alleged error with "some degree of specificity." Crippen v. Brown,

9 Vet.App. 412, 420 (1996); Fugo, 6 Vet.App. at 44 (holding that "to raise CUE there must be some

degree of specificity as to what the alleged error is and . . . persuasive reasons must be given as to

why the result would have been manifestly different").

A. Standard of Review

As noted above, in its review of this case, the Federal Circuit stated that Mr. Andrews had

"clearly raised a question of law, namely: the proper standard of review for clear and unmistakable

error," and charged this Court "to decide the proper standard(s) for its review of the Board's

determination in this case respecting CUE." Andrews v. Principi, supra. This Court established

more than 11 years ago the proper standard of review for considering Board decisions determining

whether CUE had been committed in previous RO decisions:

In Russell, this Court upheld as a valid regulation 38 C.F.R. § 3.105(a), and ruled that

we have jurisdiction to review B[oard] decisions on claims that [CUE] had been

5

committed in previous [RO] determinations. [Russell], 3 Vet.App. at 312. We also

held in Russell that the scope of our review of such decisions is necessarily limited

by our jurisdictional statutes. Id.[] at 314-15. We cannot conduct a plenary review

of the merits of the original decision; rather, we are limited to determining whether

the B[oard]'s subsequent decision which has considered possible [CUE] in previous

adjudications, the one on appeal before us, was "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 38 U.S.C. § 7261(a)(3)(A) . . . ;

Russell, [3 Vet.App.] at 314-15.

Archer v. Principi, 3 Vet.App. 433, 437 (1992) (emphasis added).

In accordance with the directives of the Federal Circuit, this Court here reiterates that the

standard of review in this case as to the Board's decision (on the merit of the CUE allegation) is the

same standard enunciated in Archer, supra, namely, determining whether the Board decision on

appeal to this Court is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law" in denying the CUE allegation. 38 U.S.C. § 7261(a)(3)(A). The appellant has not

presented here a basis, nor can the Court fathom any, for establishing and applying in this case a

standard of review different from the standard that has been consistently applied to appellants who,

over the past 11 plus years, have alleged CUE in prior final RO decisions. Although Archer and

Russell were decided before the CUE law was enacted in 1997, Pub. L. No. 105-111, § 1(a), 717

Stat. 2271 (1997), it has long been established that section 5109A "merely codified 38 C.F.R. §

3.105 and the Court of Appeals for Veterans Claims' long standing interpretation of CUE." Bustos,

179 F.3d at 1381 (citing Donovan v. West, 158 F.3d 1377, 1382-83 (Fed. Cir. 1998)). Mr. Andrews

maintains that the Court, applying a de novo standard of review, should find CUE in the 1983 and

1985 RO decisions. Appellant's (App.) Brief (Br.) at 14. However, this contention directly

contradicts our previous holding in Archer, supra, that "[w]e cannot conduct a plenary review of the

merits of the original decision." There are only two circumstances, relating to a CUE matter, where

the Court applies a de novo standard of review. The first is to decide whether the appellant, as a

matter of law, has presented a valid CUE allegation, see Phillips, 10 Vet.App. at 30. However,

Phillips is not applicable here, because the issue before the Court in this appeal is the Board decision

on the merit of the appellant’s CUE allegation, not whether it was properly presented. The second

CUE component for de novo review is the question whether an applicable law or regulation was not

applied, which also involves a question of law, see Russell, 3 Vet.App. At 319-20 (holding that

6

Board erred "as a matter of law" under 38 C.F.R. § 3.303(a) (1964), which requires "review of the

entire evidence of record," when it denied the existence of highly probative "evidence that did indeed

exist").

Therefore, the Court rejects the appellant's arguments that a de novo standard of review

should be applied to the Board's CUE denial in this case. The standard of review of the Board's

decision in this case will remain, as it has been since at least 1992, a standard that limits the Court

to determining whether the Board decision on the merit of the CUE allegation was "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law," as provided for in

38 U.S.C. § 7261(a)(3)(A). See, e.g., Simmons v. Principi, 17 Vet.App. 104, 111 (2003); Beyrle v.

Brown, 9 Vet.App. 377, 382 (1996); Eddy v. Brown, 9 Vet.App. 52, 57 (1996); Archer and Russell,

both supra.

Further, this Court has, on at least two occasions in the recent past, issued opinions

specifically rejecting similar (if not identical) CUE standard-of-review arguments. See Lane v.

Principi, 16 Vet.App. 78, 83-84 (2002), aff'd, 339 F.3d 1331 (Fed. Cir. 2003); Andre v. West,

14 Vet.App. 7, 11-12 (2000) (per curiam order), aff'd sub nom. Andre v. Principi, 301 F.3d 1354

(Fed. Cir. 2002). Indeed, in Lane, this Court explicitly rejected the major tenet of the argument that

the appellant presents here, that "a CUE claim clearly constitutes a question of law that is subject to

de novo review" (App. Br. at 8):

We likewise reject that part of the appellant's first argument that contends that

a CUE challenge is a "question of law" that entitles an appellant to both a review of

the Board's decision, as well as a review by this Court on the merits. Although this

Court has held that it will conduct de novo review of whether a viable CUE

allegation has been presented to the Board, the Court has also consistently held that

the question whether the BVA erred in determining that a prior decision did not

contain CUE is reviewed by this Court under the "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law" standard of review. 38 U.S.C.

§ 7261(a)(3)(A); see Phillips[, supra]; see also Andre[, supra] (holding same

standard-of-review argument "meritless" and admonishing counsel for "arguing what

he thinks the law should be without recognizing existing precedent"); Russell, [3

Vet.App. at 315].

Lane, supra.

7

Finally, the Court observes that the appellant’s counsel, a seasoned practitioner before this

Court, is required to acknowledge in his pleadings controlling precedent that is contrary to his

position. Furthermore, to the extent that counsel was unaware of Archer when he submitted the brief

on behalf of the appellant in this case (and the Court notes that this opinion was issued some seven

years before that brief was filed), counsel is further reminded that, under Rule 30(b) of this Court's

Rules of Practice and Procedure (Rules), "[w]hen pertinent and significant authorities come to the

attention of a party after the party's brief has been filed or after oral argument but before the decision,

a party shall promptly advise the Clerk, by letter, with a copy to all other parties, setting forth the

citations." (Emphasis added.) Cf. Abbs v. Principi, 237 F.3d 1342, 1345 (Fed. Cir. 2001)

("[e]xamples of actions deemed sanctionable include, but are not limited to, . . . failing to reference

or discuss controlling precedents"). As the highlighted text makes clear, the requirement of Rule

30(b) is a mandatory one. The Court trusts that, whatever the reason for the counsel’s failure to

acknowledge contrary controlling precedent in any filing in this case, counsel will endeavor to make

sure such a lapse does not occur in the future.

B. CUE

The Federal Circuit, in its remand order, directed that, after this Court decided upon the

proper standard of review in this case, we then "decide whether under the applicable standard of

review the denial of the CUE claim was reversible error." Andrews v. Principi, supra. Mr. Andrews

states his CUE argument as follows: "In the present case[,] Mr. Andrews is challenging the [RO]'s

failure to consider all the evidence of record in its prior ratings decisions." Br. at 12; see 3 C.F.R.

§ 3.303(a) (1982 and 1984). This is a question of law reviewed de novo by the Court, see Russell,

supra.

As stated above, this Court held in Archer that "[w]e cannot conduct a plenary review of the

merits of the original decision; rather, we are limited to determining whether the B[oard]'s

subsequent decision which has considered possible [CUE] in previous adjudications, the one on

appeal before us, was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.'" Archer, supra (quoting 38 U.S.C. § 7261(a)(3)(A)). In this case, the Board, after

reviewing in some detail the evidence of record and the previous RO decisions, stated: "The

arguments by the veteran and his representative for CUE in the 1983 and 1985 [RO] decisions are

8

no more than a simple disagreement with how the VA weighed and evaluated the facts, and as such,

this does not rise to the level of CUE." R. at 12. After defining CUE as "the kind of error, of fact

or law, that when called to the attention of later reviewers compels the conclusion, to which

reasonable minds could not differ, that the result would have been manifestly different but for the

error", the Board concluded that "[t]he veteran has not pointed to such error in the subject [RO]

decisions, and the Board is unable to discern such error." Id.

Mr. Andrews has presented no more than a bald assertion of error in this case, and argued

the following general proposition in support of such error: "The mere fact that the [RO] cites to or

mentions evidence in passing[] does not mean that consideration or evaluation of all evidence of

record was undertaken. The [RO] is required to review such evidence when making its rating

decision." Br. at 13. The appellant's argument fails because the RO in its 1983 and 1985 decisions

was not required even to discuss the evidence that it considered:

However, the mere fact that the RO did not discuss [a specific] report in its decision

or followup letter to the veteran does not make manifest that it did not consider it.

Not until February 1990 were ROs required to include in their decisions "a summary

of the evidence considered". 38 U.S.C. § 5104(b); see Veterans' Benefits

Amendments of 1989, Pub.L. No. 101-237, § 115, 103 Stat. 2062, 2066 (1989).

Hence, silence in a final RO decision made before February 1990 cannot be taken as

showing a failure to consider evidence of record.

Eddy, 9 Vet.App. at 58. Given then that silence in a pre-February 1990 RO decision is not sufficient

to establish a failure to consider evidence of record, the appellant's assertions that citation to or

mention of evidence is insufficient to establish proper consideration of the evidence of record must

fail. Cf. Russell, 3 Vet.App. at 319 (holding that RO erred in 1972 decision by denying the existence

of evidence).

Further, even considering an apparently generous reformulation by the Federal Circuit of Mr.

Andrews' inherently defective argument (i.e., "Andrews is indeed challenging the determination of

the Board that all his [CUE] claim did was allege a defect in how the evidence was weighed";

"[c]learly, Andrews was asserting that the Board erred in not discerning [CUE]", Andrews v.

Principi, supra), because the appellant failed to assert a specific error in the Board decision and

provide persuasive reasons why the result, but for the error, would have been manifestly different,

the Court can find no basis on which to conclude that the decision of the Board was arbitrary,

9

capricious, an abuse of discretion, or otherwise not in accordance with law. See Fugo, supra. The

Court also reviews Board decisions on CUE to decide whether the Board’s determination is

supported by an adequate statement of reasons or bases. See Eddy v. Brown, 9 Vet.App. 52, 57

(1996); Russell, 3 Vet.App. at 315. We find no reasons-or-bases deficiency in the instant Board

decision.

C. Roberson II and VBA

In his motion for reconsideration or panel decision, the appellant asserts that the Court

overlooked both the Federal Circuit's opinion in Roberson v. Principi, 251 F.3d 1378 (Fed.Cir. 2001)

(Roberson II), and the amendments made to 38 U.S.C. § 7261 by the Veterans Benefits Act of 2002,

Pub. L. No. 107-330, 116 Stat. 2819, 2833 (VBA). He argues that the "newly articulated standard

set out in Roberson" requires a remand to the Board for readjudication. Motion (Mot.) at 10. He

contends that the VBA amendments made to this Court's standard of review require a reconsideration

of his case "based upon the newly amended standard of 'clearly erroneous' as articulated by the

VBA." Mot. at 11.

The appellant's argument that the "newly articulated standard set out in Roberson [II]"

requires a remand to the Board for readjudication (Mot. at 10) is without merit. In Roberson II, the

Federal Circuit held that when a veteran submits evidence of a medical disability (for which he is

in turn awarded service connection), claims the highest rating possible, and submits evidence of

unemployability, as had the veteran in that case, VA must consider a rating of total disability based

upon individual unemployability (TDIU), even if not specifically requested by the veteran. Roberson

II, 251 F.3d at 1382-85. The Federal Circuit also stated:

In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), we . . . determined that Congress

has mandated that the VA is "to fully and sympathetically develop the veteran's claim

to its optimum before deciding it on the merits." We see no basis for applying a

different standard to a CUE claim, and we hold that []VA is thus required to consider

a CUE claim using the standard of Hodge.

Roberson II, 251 F.3d at 1384. In Szemraj v. Principi, the Federal Circuit, in discussing Roberson

II, recently stated the following:

Roberson [II] did not change the well-established legal standard for determining the

existence of CUE in RO and [Board] decisions. See Cook [v. Principi], 318 F.3d

10

[1334,] 1344 [(Fed. Cir. 2003) (en banc)]; see also 38 U.S.C. §§ 5109A, 7111

(2000). . . . All Roberson [II] requires is that VA give a sympathetic reading to the

veteran's filings to determine all claims for recovery supported by a liberal

construction of those allegations.

Szemraj, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). The Federal Circuit also reiterated its holding

in Roberson II that VA is "required to consider a CUE claim using the standard of Hodge [(i.e., the

duty to fully and sympathetically develop the veteran's claim to its optimum)]" and further stated that

"Roberson [II] requires, with respect to all pro se pleadings, that the VA give a sympathetic reading

to the veteran's filings by 'determining all potential claims raised by the evidence, applying all

relevant laws and regulations.'" Szemraj, 357 F.3d at 1373 (quoting Roberson II, 251 F.3d at 1384).

Notwithstanding some interpretive issues (particularly in light of the requirement that CUE

must be pled with some specificity, see Andre, infra) in the Federal Circuit's language in both

Szemraj and Roberson II, the existing authority on CUE, which the Federal Circuit stated in

Roberson II was not being changed, limits the potential interpretations of the Roberson II standard.

Moreover, in Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004), the Federal Circuit clarified

that in adjudicating a CUE claim, VA is to sympathetically read the claimant's submissions to VA

at the time of the decision being collaterally attacked (and not the appellant's CUE motion itself).

Specifically, the Federal Circuit stated in Moody:

The question is whether the BVA, as required by Roberson,

sympathetically read Mr. Moody's filings prior to June 24, 1994, [the

date of Mr. Moody's underlying claim, the decision in which is now

being collaterally attacked,] in determining whether Mr. Moody made

an informal claim for secondary service connection for his psychiatric

disorder. The interpretation of these prior filings is essentially a

factual inquiry, and it is beyond our jurisdiction to make that

determination.

Moody, supra. Under Moody, the Board was to afford this sympathetic reading to those filings to

see if the underlying decision contained CUE by virtue of a failure by VA to fully and

sympathetically develop the veteran's claims, but Mr. Andrews' appeal must fail under that analysis

because he has not asserted before the Board (or, for that matter, before this Court or the Federal

Circuit) that VA failed to so develop his claim. "Because a CUE claim involves an allegation of an

error with 'some degree of specificity,' a veteran's assertion of a particular clear and unmistakable

11

error by the RO constitutes a distinct claim." Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir.

2002). Furthermore, if the Federal Circuit's three opinions were somehow to mean (although we

believe that Moody shows that this is not what Roberson II was requiring) that VA is required to

fully and sympathetically develop the appellant's CUE motion itself, Mr. Andrews has neither

asserted that his CUE motion raised any additional claims not related to the prior final RO decisions

(which, of course, can be reviewed for CUE only "based upon the evidence of record at the time of

the original decision," Cook, 318 F.3d at 1344), nor asserted that VA failed to give a "sympathetic

reading" to his CUE motion. Indeed, as to any such interpretation, we note that it would be difficult,

if not impossible, to discern how an appellant could establish that VA had failed to give his CUE

motion a sympathetic reading. Finally, we admit that we are puzzled by how "the well-established

legal standard for determining the existence of CUE" can be considered unchanged by Roberson's

requirement that "VA give a sympathetic reading to the veteran’s filings to determine all claims for

recovery supported by a liberal construction of those allegations", Szemraj, 357 F.3d at 1375-76

(citing Cook, supra, for determination that Roberson did not change CUE standard), in light of

Cook's express reaffirmation of Russell, which held that the error must be "obvious" on the face of

the record and "undebatable," Russell, 3 Vet.App. at 314; Cook, 318 F.3d at 1344-45 (noting how

Congress had "explicitly endorsed the Russell interpretation of CUE").

Concerning the appellant's argument that the VBA amendments to section 7261 necessitate

a remand for reconsideration of his case, he relies upon the following changes: (1) The addition of

the phrase "adverse to the claimant" after "material fact" in section 7261(a)(4); (2) the addition of

the words "or reverse" after "and set aside" in section 7261(a)(4); and (3) the addition of a new

section 7261(b)(1), which states that the Court shall "take due account of the Secretary's application

of section 5107(b) [(the 'benefit of the doubt' provision)] of this title." Mot. at 4. The appellant's

arguments as to these points are long on exposition, but short on substance. On the first two points,

he argues that these additions, along with the addition to section 7261(b) of the statement that the

Court shall review the record of proceedings before the Secretary and the Board, mandate that "this

Court must examine the Board's adverse findings of fact in light of the entire record in the exercise

of independent judgment as to whether the Board's September 1998 decision was 'clearly erroneous'"

based upon the evidence as it existed in 1983 and 1985. Mot. at 6. However, the statutory additions

12

cited by the appellant do not disturb our standard of review as to the Board decision on CUE. His

arguments fail to account for the fact that our standard of review in this type of case is not based

upon section 7261(a)(4), but rather upon section 7261(a)(3)(A), which has not been amended. See

Archer v. Principi, 3 Vet.App. 433, 437 (1992).

Furthermore, the addition of section 7261(b)(1) could not have any application to our review

of Board CUE decisions. In Fugo, 6 Vet.App. at 44, this Court stated that the issue of whether or

not a claimant was accorded the benefit of the doubt was "an issue clearly within the 'weighing and

evaluation' realm." As established in Russell, 3 Vet.App. at 313, "[t]he claimant [alleging CUE] . . .

must assert more than a disagreement as to how the facts were weighed or evaluated" and the

benefit-of-the-doubt "rule of 38 U.S.C. § 5107(b)[(1)] . . . could never be applicable" in assessing

a CUE motion, id. at 314. The appellant presents no persuasive arguments as to why or how these

precedents should be ignored in this case; hence, we will not do so.

Finally, nearly identical arguments regarding the effect of the VBA on this Court's standard

of review were rejected in Roberson v. Principi, 17 Vet.App. 135, 139 (2003) (per curiam)

(Roberson III) (finding that VBA amendments "have, by their language, made very little change to

our standard of review," and that "the VBA, as written, does not effectuate . . . a change" in our

standard of review). Although Roberson III did not specifically address our standard of review over

Board determinations finding no CUE in prior RO decisions, it would be incongruous, particularly

in light of the above analysis, for the Court to accept here the same arguments it has rejected in

another, similar situation. Therefore, we hold that the statutory amendments cited by Mr. Andrews

are not applicable to our standard of review in this matter. The Board decision will be affirmed.

III. CONCLUSION

After consideration of the pleadings and a review of the record, the Court holds that Mr.

Andrews has not demonstrated that the Board committed either legal or factual error that would

warrant reversal or remand for his CUE allegation. The Court is also satisfied that the Board

decision fulfills the "reasons or bases" requirements of 38 U.S.C. § 7104(d)(1). See Eddy and

Gilbert, both supra.

AFFIRMED.

13

STEINBERG, Judge, concurring in part and dissenting in part: I join in the opinion of the

Court except for the concluding paragraph of part II.C, which unnecessarily addresses a matter, the

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

(Dec. 6, 2002), on the Court's standard of review. Because the preceding two paragraphs in the

Court's opinion fully and completely dispose of the appellant's unpersuasive contention that the VBA

somehow affected the Court's standard of review as to an appeal of a BVA denial of a CUE claim,

there is no occasion for the opinion to address the more general question and thus refer to the Court's

unwarranted – and, in my view, incorrect – dicta in Roberson v. Principi, 17 Vet.App. 135, 139

(2003) (per curiam order). Therefore, I dissent from the last paragraph of part II of the majority

opinion; my specific views about these matters are set forth in my dissenting statement

accompanying the full Court order in Wells v. Principi , __ Vet.App. __, No. 03-1014, 2004 WL

1053160 (May 11, 2004) (en banc per curiam order).

I note also the following about the discussion in part II.A of the Court's opinion (ante at 6-7,

__ Vet.App. at __ ) regarding the standard of review of a Board denial that there was CUE in a prior

final decision. I agree that the question whether an applicable law or regulation was not correctly

applied is a question of law to be reviewed de novo by the Court. I note, however, that a Board

determination that the adjudicator did not have before him or her "the correct facts, as they were

known at the time", Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc), and thus that no error

was committed, might well be subject to review as a question of fact subject to the "clearly

erroneous" standard under 38 U.S.C. § 7261(a)(4). The Board's decision on the ultimate

question – Was there CUE in the prior decision? – is, of course, reviewable under the 38 U.S.C.

§ 7261(a)(3)(A) standard – "arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law", as correctly indicated in the Court's opinion, ante at 7-8, __ Vet.App. at __.

14