George T. Richardson v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 03-2100

GEORGE T. RICHARDSON , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided May 17, 2006 )

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

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

B. Rippel, Deputy Assistant General Counsel; and Thomas E. Sullivan, all of Washington, D.C., were

on the brief for the appellee.

Before KASOLD, MOORMAN, and SCHOELEN, Judges.

SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Judge, and MOORMAN,

Judge, filed concurring opinions.

SCHOELEN, Judge: The appellant, George T. Richardson, through counsel, appeals a

September 5, 2003, Board of Veterans' Appeals (Board) decision denying his requests for revision

of August 1944 and May 1946 VA regional office (RO) decisions on the basis of clear and

unmistakable error (CUE). Record (R.) at 1-18. This appeal is timely, and the Court has jurisdiction

over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the following reasons, we will vacate

the Board's determination that there was no CUE in the August 1944 RO decision and remand that

matter, and we will affirm the Board's determination that there was no CUE in the May 1946 RO

decision.

I. BACKGROUND

Mr. Richardson served on active duty in the U.S. Army from June to September 1935 and

from September 1942 to July 1944. R. at 220, 261. Service medical records indicate treatment for

various conditions. For example, he was seen by a doctor in July 1943 for weakness and fainting

attacks and was diagnosed with carotid sinus syndrome.1 R. at 57-59. Additional service medical

records indicate a diagnosis of sinusitis and carotid sinus syndrome. R. at 122. In January 1944,

after spending five weeks in rehabilitation for his symptoms, Mr. Richardson was diagnosed with

mild neurocirculatory asthenia.2 R. at 96. A May 1944 hospital report notes that he had spent 11

of his 20 months in service in the hospital. R. at 134. The final diagnoses listed on the hospital

report are carotid sinus syndrome, simple migraine3 aggravated by psychological factors, and simple

adult maladjustment4 syndrome with psychosomatic manifestations. R. at 135. That report also

notes that Mr. Richardson was seen by a neuropsychiatrist who "concurred in the opinion that we

were not dealing with a psychoneurosis5 in this instance." Id. At discharge, he was found to be unfit

for further military service because of moderate right carotid sinus syndrome, which had its onset

1

Carotid sinus syndrome is a "stimulation of a hyperactive carotid sinus, causing a marked

fall in blood pressure due to vasodilation, cardiac slowing, or both." STEDMAN 'S MEDICAL

DICTIONARY 1749 (27th ed. 2000) [hereinafter STEDMAN 'S]. The carotid sinus is located at the level

of the C4 vertebra in the neck. See id. at 137.

2

Neurocirculatory asthenia is "a type of anxiety neurosis formerly encountered often among

military personnel during times of war, in which cardiorespiratory symptoms, such as palpitation,

rapid pulse, and precordial pain, were prominent." STEDMAN 'S 158.

3

Migraine, also known as a vascular headache, is "[a] symptom complex occurring

periodically and characterized by pain in the head (usually unilateral), vertigo, nausea and vomiting,

photophobia, and scintillating appearances of light." STEDMAN 'S 1118.

4

Maladjustment is "an inability to cope with the problems and challenges of everyday living."

STEDMAN 'S 1056.

5

Psychoneurosis was formerly used to describe "a classification of neurosis that included

hysteria, psychasthenia, neurasthenia, and the anxiety and phobic disorders." STEDMAN 'S 1477.

2

in July 1943 and was manifested by "syncope,6 following pressure on the right side, and a history of

dizziness and fainting." R. at 186.

In August 1944, Mr. Richardson, acting pro se, filed an application for VA benefits (Form

526), in which, in the blank after "Nature of disease or injury on account of which claim is made and

the date each began," he described his injuries as follows:

Claimant had an attack of fever on 7-3-43. This was followed by 3 attacks of

pneumonia. As a result[,] heart was affected and claimant has had migraine

headaches since that time. Nerves in throat controlling heart have been injured and

claimant is unable to have any strenuous physical activity. Claimant's nervous

system has been affected until he is unable to concentrate for any period of time.

R. at 220-21. In August 1944, the RO granted service connection for right carotid sinus syndrome,

rated 30% disabling, and for migraine, rated 20% disabling, for a combined rating of 40%. R. at 226.

A VA medical examination, dated February 1946, listed only a diagnosis of "hypersensitive carotid

sinus with carotid sinus syndrome." R. at 243. A March 1946 neuropsychiatric examination report

noted that Mr. Richardson suffered from an inability to concentrate, dizziness, chills, and fever.

R. at 245. The examiner stated that these symptoms were "secondary in most part to a carotid sinus

syndrome," and diagnosed only carotid sinus syndrome. Id. In response to a request by the RO for

a "proper neuropsychiatric diagnosis in this case," the VA examination reports were "reviewed with

various examiners and [the] diagnosis of migraine [was] found to be in error." R. at 248, 252. In

May 1946, the RO reclassified Mr. Richardson's disability as "hypersensitive carotid sinus with

carotid sinus syndrome; associated with headaches, formerly diagnosed as migraine," and increased

his disability rating for carotid sinus syndrome to 50%. R. at 254. His rating for migraine was

reduced to 0%. Id.

In April 1959, Mr. Richardson was hospitalized for observation and examination for

reevaluation purposes. R. at 264-65. In August 1959, the RO again reclassified his service-

connected condition to be "psychoneurosis conversion type with headache & vasomotor instability,

formerly diagnosed as migraine & hypersensitive carotid sinus," and his rating was reduced from

6

Syncope is a "[l]oss of consciousness and postural tone caused by diminished cerebral blood

flow." STEDMAN 'S 1745.

3

50% to 30%, effective October 3, 1959. R. at 264-66. No reference was made to his 0% rating for

migraine. Id.

In March 1996, Mr. Richardson, through counsel, filed a request for revision of the

August 1944 and August 1959 RO decisions on the basis of CUE. R. at 270-71. He specifically

asserted that the RO should have considered whether he had psychoneurosis in its August 1944

decision, based on the 1944 application. R. at 271. In an October 1996 decision, the RO determined

that it did not have jurisdiction to consider the CUE issues. R. at 289-90. In a September 2001

decision, the Board reviewed the two requests for revision on the basis of CUE arising from the

August 1944 and August 1959 RO decisions and recognized a third allegation of CUE in the May

1946 decision, based on the reduction of Mr. Richardson's rating for migraine. R. at 358-60; 369-70.

Pursuant to the holding in Brown v. West, the Board concluded that the RO did have original

jurisdiction to consider CUE issues and remanded the matter to the RO. 203 F.3d 1378 (Fed. Cir.

2000) (holding that an intervening Board decision that does not decide an issue subject to a request

for revision on the basis of CUE does not subsume prior RO decision so as to preclude RO's

adjudication of the request for revision on the basis of CUE); R. at 360, 369.

In July 2002, the RO determined that no revision was warranted in the August 1944,

May 1946, and August 1959 RO decisions. R. at 384-92. On September 5, 2003, the Board issued

the decision now on appeal, which found no CUE in the August 1944 and May 1946 RO decisions.

R. at 1-18. The Board also specifically held that Mr. Richardson did not have a pending,

unadjudicated claim for psychoneurosis. R. at 11 ("Upon review of the claim, the closest the veteran

comes to seeking service connection for psychoneurosis was to report that his 'nervous system has

been affected until he is unable to concentrate for any period of time.' That statement does not rise

to the level of a claim of entitlement to service connection for psychoneurosis, particularly in view

of the May 1944 hospital summary that diagnosed simple adult maladjustment, and his attorney does

not contend that it does."). With regard to the August 1959 RO decision, the Board found that the

decision was inadequate because it did not list service connection for migraine on the decision, nor

did it propose or indicate severance of service connection for migraine. R. at 2. Thus, the Board

held that the August 1959 RO decision was not final and was not subject to CUE attack. R. at 3.

The Board referred that matter to the RO and it is not presently before the Court. Id.

4

II. ANALYSIS

A prior final RO decision must be reversed or revised where evidence establishes clear and

unmistakable error. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a) (2005). CUE is established when

the following conditions are met: First, either (1) the correct facts contained in, or constructively

contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions

extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet.App. 242, 245 (1994).

Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were

weighed or evaluated." Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc). Finally, the

error must have "manifestly changed the outcome" of the prior decision. Id. at 313-14, 320; see

Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting "manifestly changed

the outcome" language in Russell, supra). When the Court reviews a determination that there was

no CUE in a prior final decision, the Court's review is limited to determining whether the Board's

conclusion in that regard is "arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law," and whether it is supported by an adequate "statement of reasons or bases."

38 U.S.C. §§ 7261(a)(3)(A), 7104(d)(1); see Eddy v. Brown, 9 Vet.App. 52, 57 (1996).

A. Clear and Unmistakable Error in the August 1944 Decision

The Board determined that the alleged failure by the RO to adjudicate a claim for

psychoneurosis could not be raised in the context of a request for revision on the basis of CUE

because only final decisions are subject to revision for CUE. R. at 10-11; see 38 C.F.R. § 3.105(a).

The Board stated that the failure to recognize the existence of a pending claim is not a final decision

subject to collateral attack in a request for revision on the basis of CUE, relying on our holding in

Norris v. West, 12 Vet.App. 413, 422 (1999) (determining that a claim reasonably raised to the RO

was not adjudicated and holding that unadjudicated matters were not final for purposes of CUE

attack). R. at 10-11. Thus, the Board held that the 1944 RO's failure to adjudicate a claim for

psychoneurosis reasonably raised in 1944 cannot be CUE because there is no final decision on that

claim subject to a CUE attack. Id. The Board then proceeded to determine, outside of the context

of CUE, that Mr. Richardson had not reasonably raised a claim for psychoneurosis in 1944. R. at

11.

5

The Board stated that the requirement under the holding of the U.S. Court of Appeals for the

Federal Circuit (Federal Circuit) in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) for VA to

"'fully and sympathetically develop the veteran's claim,' and the consequences of VA's failure to do

so, i.e., remand for adjudication of an old 'implicit' claim, has been limited to the facts of that case[,]"

citing our decisions in Lane v. Principi, 16 Vet.App. 78, 86-87 (2002), and Simmons v. Principi,

17 Vet.App. 104, 110 (2003). R. at 10. It found that the duty to fully and sympathetically develop

a claim enunciated in Roberson only applies when a service-connection claim for a particular

disability is accompanied by a contention that the disability causes unemployability. R. at 10. The

Board essentially limited Roberson to its facts by holding that Roberson did not apply in cases in

which the alleged prior reasonably raised claim was for service connection rather than for a total

disability rating based on individual unemployability (TDIU). R. at 10. Thus, the Board did not

follow the holding in Roberson that "in order to develop a claim 'to its optimum' as mandated by

Hodge[ v. West, 155 F.3d 1356, 1362-63], the VA must determine all potential claims raised by the

evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically

labeled a claim for TDIU." Roberson, 251 F.3d at 1384; see R. at 10.

Subsequent to the Board decision on appeal, the Federal Circuit resolved any confusion as

to whether Roberson applies only in claims for TDIU. See Szemraj v. Principi, 357 F.3d 1370, 1373

(Fed. Cir. 2004) (holding that "VA has a duty to sympathetically read a veteran's allegations in all

benefit claims"). The Federal Circuit held that, upon receipt of a request for revision on the basis

of CUE, "VA must give a sympathetic reading to the veteran's filings in that earlier proceeding to

determine the scope of the claims." Id.; see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir.

2004). VA must read all pro se submissions sympathetically, including submissions in claims

underlying a request for revision on the basis of CUE, to "'determine all potential claims raised by

the evidence, applying all relevant laws and regulations.'" Beverly v. Nicholson, 19 Vet.App. 394,

405 (2005) (quoting Roberson, 251 F.3d at 1373); see also Andrews v. Nicholson, 421 F.3d 1278,

1282 (Fed. Cir. 2005) (stating that "'Roberson requires, with respect to all pro se pleadings, that the

VA give a sympathetic reading to the veteran's filings'" (quoting Szemraj, 357 F.3d at 1373)).

Mr. Richardson argues that, in denying his request for revision of the August 1944 RO

decision on the basis of CUE, the Board misinterpreted and misapplied the rule of law articulated

6

in Roberson, which has since been further explained in Szemraj and Moody. Appellant's Brief (Br.)

at 6-10. He argues that under Roberson, Szemraj, and Moody, VA has a duty to fully and

sympathetically read the pleadings and evidence submitted in support of his prior claim before

adjudicating his request for revision on the basis of CUE. Id. at 9. He states that it is apparent that

the Board did not apply the principles articulated in Roberson before denying his request for revision

on the basis of CUE. Id. at 6-7. He asserts that the matter should be remanded to the Board to apply

Roberson and read his 1944 submissions sympathetically to include a claim for service connection

for psychoneurosis based on his original 1944 application. Id. at 9-10.

The Secretary argues that the Board's determination that there was no CUE in the August

1944 RO decision should be affirmed because it was not arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law, and was accompanied by an adequate statement of reasons

or bases. Secretary's Br. at 9. The Secretary also argues that the pendency of a claim for

psychoneurosis is not properly addressed in a request for revision on the basis of CUE. Id. at 11-12.

In the alternative, the Secretary asserts that, if Mr. Richardson's challenge is properly raised in a

request for revision on the basis of CUE, then the Court should find no CUE because Mr. Richardson

is merely disagreeing with the Board's factfinding. Id. at 13.

We turn first to the Secretary's argument that, under Norris, the matter of a pending,

unadjudicated claim is not properly addressed in a request for revision on the basis of CUE. Id. at

11-12. The Court agrees that revision of a prior decision on the basis of CUE can only be based on

a final decision by the RO or the Board. See 38 C.F.R. § 3.105(a) (providing for the revision of

"[p]revious [RO] determinations which are final and binding" on the basis of CUE); 38 C.F.R.

§ 20.1400(a) (2005) (providing for review to determine whether CUE "exists in a final Board

decision"); see also May v. Nicholson, 19 Vet.App. 310, 314-19 (2005) (discussing the finality of

Board decisions for the purpose of collateral attack); Norris, 12 Vet.App. at 422 (holding that where

there is no final RO decision, there can be no CUE).

The Federal Circuit held recently in Andrews, supra, that, where the Board has ruled on a

CUE motion in which the appellant alleged a reasonably raised claim and our Court "properly had

jurisdiction to review the Board decision," the Federal Circuit had jurisdiction to review our

decision. Id., 421 F.3d at 1281. Nothing in the Andrews decision, however, demonstrates an intent

7

to alter the rule that revision on the basis of CUE must be based upon a final adjudication. In fact,

Andrews points to the decisions in Roberson and Szemraj, which stated that "'apart from the

requirement that a pro se veteran's pleadings be read sympathetically, our discussion in Roberson

did not change the well-established legal standard for determining the existence of CUE in RO and

[Board] decisions.'" Andrews, 421 F.3d at 1283 (quoting Szemraj, 357 F.3d at 1373). It is clear that

Andrews does not alter fundamentally the indispensable prerequisite for revision on the basis of

CUE – a final RO or Board decision. See 38 C.F.R. § 3.160(d) (2005) (defining a "finally

adjudicated claim" as a claim "which has been allowed or disallowed by the agency of original

jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an

award or disallowance, or by denial on appellate review, whichever is the earlier"); 38 C.F.R.

§§ 20.1100, 20.1103, 20.1104 (2005) (providing for the finality of Board decisions and underlying

RO decisions); see also May and Norris, both supra.

If any doubt existed as to whether a final decision is a necessary prerequisite to a request for

revision on the basis of CUE, the Federal Circuit clarified the matter further in Bingham v.

Nicholson, 421 F.3d 1346 (Fed. Cir. 2005), where it rejected the appellant's assertion that "a

purported failure to evaluate a service connection claim under 'all applicable law' – e.g., the various

theories of entitlement authorized by statute – is a legal error that precludes final adjudication of that

claim." Id. at 1348. The Federal Circuit held that "finality attaches once a claim for benefits is

disallowed, not when a particular theory is rejected." Id. at 1348-49. Because the Bingham Court

found a final decision on the claim, if that decision was defective, it could only be corrected through

the statutory exceptions to the rule of finality (e.g., a request for revision on the basis of CUE or a

claim to reopen based on new and material evidence). Regarding Andrews, the Bingham Court

stated that "VA's failure [in Andrews] to consider all aspects of a claim does not render its decision

non-final but instead 'is properly challenged through a CUE motion.'" Bingham, 421 F.3d at 1349

(quoting Andrews, 421 F.3d at 1281).

In Moody, supra, the Federal Circuit addressed an appeal from this Court's affirmance of a

Board denial of a request for revision of a prior RO decision on the basis of CUE in which the

appellant sought an earlier effective date for a grant of secondary service connection. The appellant

asserted that the RO decision contained CUE because his prior submissions reasonably raised an

8

informal claim for secondary service connection for a psychiatric disorder that, if recognized, would

support an earlier effective date. 360 F.3d at 1309. The Moody Court vacated this Court's decision

and remanded the matter for the application of the holding in Roberson. In interpreting Roberson,

the Moody Court stated:

The question is whether the [Board], as required by Roberson, sympathetically read

Mr. Moody's [prior filings], 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.

Id. at 1310 (citing Lennox v. Principi, 353 F.3d 941, 946 (Fed. Cir. 2003), and Cook v. Principi,

353 F.3d 937, 939 (Fed. Cir. 2003) (en banc)).

Thus, a claimant may assert that VA failed to adjudicate a reasonably raised claim in the

context of a request for revision of a prior decision on the basis of CUE.7 See Bingham, Andrews,

Moody, and Roberson, all supra. When presented with such a request, VA must make two threshold

factual determinations. First, VA must apply the holding in Roberson and give a full and

sympathetic reading to the pro se claimant's prior submissions to determine whether such a claim

was reasonably raised. If it is determined that a claim was reasonably raised, VA must then

determine whether such a claim is pending or whether it was adjudicated as part of a final decision.8

If such a reasonably raised claim remains pending, then there is no decision on that claim to revise

on the basis of CUE; however, the claim must be adjudicated. See Roberson, 251 F.3d at 1384-85

(determining that the appellant's earlier submissions raised a TDIU claim as a matter of law and

remanding the matter for a determination of entitlement to TDIU). If VA determines that the claim

was adjudicated, then the claimant may collaterally attack the resulting decision on the basis of CUE.

However, it is not for this Court to decide in the first instance whether such a claim ever existed or,

if so, whether such a claim was ever adjudicated. See Moody, 360 F.3d at 1310.

7

Whether or not CUE is the exclusive way to raise such a matter is an issue we need not

address in order to decide the matter before us.

8

A claim that has not been finally adjudicated is necessarily pending. See 38 C.F.R.

§ 3.160(c) (2005) (defining "pending claim" as a claim "which has not been finally adjudicated").

9

In this case, although the Board determined that there "is no pending claim for service

connection for psychoneurosis" based on Mr. Richardson's statement in his 1944 application in

conjunction with the "May 1944 hospital summary that diagnosed simple adult maladjustment," the

Board reached this conclusion without first applying Roberson and giving a "full and sympathetic

reading" to Mr. Richardson's 1944 submissions. R. at 10-11; see Roberson, 251 F.3d at 1384

(quoting Hodge, 155 F.3d at 1362). After Szemraj, there is no question that the Board's holding

(based on our then-extant jurisprudence) that Roberson applies only in TDIU claims was incorrect.

Because the Board failed to apply Roberson prior to addressing whether Mr. Richardson reasonably

raised a claim for psychoneurosis in 1944, this matter must be remanded to the Board to make the

requisite factual findings. See 38 U.S.C. § 7104(a); Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004)

(finding that remand is the appropriate remedy where Board has failed to apply law correctly).

On remand, the Board (or the RO9) first should give a full and sympathetic reading of the

appellant's 1944 application to determine whether there is a pending, unadjudicated claim for

psychoneurosis. If, after applying Roberson, it is determined that Mr. Richardson did not reasonably

raise a claim for psychoneurosis in his 1944 application, or that such a claim was adjudicated, either

as a separate and distinct claim or as part of the August 1944 RO decision, then the Board should

adjudicate the request for revision on the basis of CUE. If the Board determines that the 1944

application reasonably raises a claim for psychoneurosis and that such a claim was not adjudicated,

then the claim remains pending and must be referred to the RO for a determination of Mr.

Richardson's entitlement to service connection for psychoneurosis based on the 1944 application

because a claim on which there has been no final decision cannot be addressed in a request for

revision on the basis of CUE.10 See Norris, 12 Vet.App. at 422 (noting the pendency of an

9

The Board must determine, in light of Bernard v. Brown, whether it can apply Roberson in

the first instance, or whether it must remand the matter to the RO. See Bernard, 4 Vet.App. 389, 394

(1993) (holding that when the Board addresses questions not addressed by the RO, "it must consider

whether the claimant has been given adequate notice of the need to submit evidence or argument on

that question and an opportunity to submit such evidence and argument and to address that question

at a hearing, and, if not, whether the claimant has been prejudiced thereby").

10

The matter would have to be remanded to the RO (if not already remanded by the Board)

for an initial decision on the claim. See Godfrey v. Brown, 7 Vet.App. 398, 408 (1995) (holding

10

unadjudicated TDIU claim before the RO because the RO failed to adjudicate a claim for TDIU as

part of an informal claim for an increased rating); see also Roberson, 251 F.3d at 1385 (remanding

the matter of eligibility for TDIU after determining that a TDIU claim was reasonably raised by the

veteran's submissions).

B. Clear and Unmistakable Error in the May 1946 Decision

Mr. Richardson also argues that there was CUE in the May 1946 RO decision, which

reclassified his migraine as hypersensitive carotid sinus with carotid sinus syndrome and increased

his disability rating for carotid sinus syndrome to 50%. R. at 254. The RO also reduced his

disability rating for migraine to 0%. Id. Mr. Richardson argues that this decision unlawfully merged

two separate disabilities into one disability rating, and that the RO had no authority to do so.

Appellant's Br. at 10-13. The Secretary asserts that the Board did have lawful authority to merge the

separate ratings. Secretary's Br. at 16 (citing 1945 Schedule for Rating Disabilities, ¶ 1).

As a preliminary matter, as noted above, a Board decision addressing a request for revision

of a prior decision on the basis of CUE in a prior final decision is generally reviewed under the

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

38 U.S.C. § 7261(a)(3)(A). If the appellant alleges that there was no legal authority for the RO's

actions, then the Court is being asked to address a question of law. All questions of law, even those

raised in the context of a request for revision on the basis of CUE, are reviewed under the

nondeferential de novo standard of review. See Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir.

2004); Joyce v. Nicholson, 19 Vet.App. 36, 43 (2005). Therefore, the determination of whether the

RO had the authority to adjust Mr. Richardson's rating in 1946 is reviewed de novo.

The Board found that the RO had the authority to modify Mr. Richardson's ratings based on

Paragraphs 1 and 13 of the 1945 Schedule for Rating Disabilities [hereinafter, Paragraph 1 and

Paragraph 13], based upon the February 1946 VA examination that attributed his headaches to

carotid sinus syndrome and a May 1946 medical opinion that he did not suffer from migraine.

R. at 14; see R. at 243, 252. Paragraph 1 provides, in pertinent part:

"that the Board did not err in referring the matter to the RO because the Board did not have appellate

jurisdiction to review the veteran's claim of entitlement to benefits under section 1110 . . . and lacked

jurisdiction to adjudicate the merits of that claim").

11

A veteran's disability claim may require reratings in accordance with changes in laws,

changes in medical knowledge, and changes in physical or mental condition, over a

period of many years. It is thus essential, both in the examination and in the

evaluation of disability, that each disability be viewed in relation to its whole history.

Different examiners, at different times, will not describe the same disability in the

same language; features of the disability which must have persisted unchanged may

be overlooked or a change for the better or worse may not be accurately appreciated

or described.

1945 Schedule for Rating Disabilities, ¶ 1; cf. 38 C.F.R. §§ 4.1, 4.2 (2005) (codified version of

Paragraph 1). Paragraph 13 provides, in pertinent part:

When any change in evaluation is to be made, the rating agency should assure itself

that there has been an actual change in the conditions, for better or worse, and not

merely a difference in thoroughness of the examination or in use of descriptive terms.

This will not, of course, preclude the correction of erroneous ratings, nor will it

preclude giving the veteran the benefit of reasonable doubt as to increase in severity.

1945 Schedule for Rating Disabilities, ¶ 13 (emphasis added); cf. 38 C.F.R. § 4.13 (2005) (codified

version of Paragraph 13).

The Board held that Paragraphs 1 and 13 provided authority for the RO decision in May 1946

to reclassify Mr. Richardson's migraine as hypersensitive carotid sinus with carotid sinus syndrome

and increase his rating to 50%. R. at 14. Specifically, the Board found that the RO modified Mr.

Richardson's disability ratings based on the new medical opinion that his diagnosis of migraine was

"found to be in error." R. at 252; see R. at 14. In addition, the Board determined that the RO had

the legal authority to reclassify his disabilities based on Paragraphs 1 and 13. R. at 14.

Mr. Richardson's assertion that "[t]here was no change in the description of [his] carotid

sinus syndrome disability or his migraine headaches disability" (Reply Br. at 7) is contrary to the

evidence of record (R. at 243, 245, 252), which indicates that there was, in fact, a change in his

diagnosis. This assertion illustrates that Mr. Richardson is merely disagreeing with the manner in

which the RO weighed the facts in rendering its May 1946 decision. Mere disagreement with the

way that the RO evaluated the facts cannot be a basis for a finding of CUE. See Russell, 3 Vet.App.

at 313-14; cf. 38 C.F.R. § 20.1403(d)(1) (2005) (a new medical diagnosis that "corrects" an earlier

diagnosis cannot be the basis for a finding of CUE in a Board decision). Even assuming that Mr.

Richardson's assertion that his condition did not change is correct (because migraine was never

causing his headaches), the RO had lawful authority to modify his rating under Paragraph 13, which

12

allows for "the correction of erroneous ratings." Thus, the Board's conclusion that the RO had lawful

authority to adjust Mr. Richardson's disability ratings, based on Paragraphs 1 and 13, is correct.

In addition, Mr. Richardson asserts that the Board violated 38 U.S.C. § 7104(a) by failing

to consider all applicable provisions of law. Specifically, he argues that the matter of CUE in the

May 1946 decision should be remanded because the Board failed to discuss Esteban v. Brown,

6 Vet.App. 259 (1994), and Fanning v. Brown, 4 Vet.App. 225 (1993), which he argues are

"'potentially applicable'" provisions of law. Appellant's Br. at 14 (citing Schafrath v. Derwinski,

1 Vet.App. 589, 593 (1991)). Our holdings in Esteban and Fanning both stand for the general

proposition that all disabilities must be rated separately. See 38 C.F.R. § 4.25(b) (2005) ("Except

as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity . . .

are to be rated separately as are all other disabling conditions, if any."). Mr. Richardson is correct

that the Board is required by 38 U.S.C. § 7104(a) to consider all applicable provisions of law. See

Schafrath, 1 Vet.App. at 592-93.

However, his argument fails because the holdings in Esteban and Fanning were not laws

extant at the time of the May 1946 decision. Therefore, it was not necessary for the Board to address

the applicability of those cases to Mr. Richardson's request for revision on the basis of CUE. See

Damrel, 6 Vet.App. at 245-46; Russell, 3 Vet.App. at 313-14. Moreover, the RO specifically sought

a medical opinion clarifying whether Mr. Richardson's carotid sinus syndrome and migraine were

separate diseases (R. at 248), which stated that the diagnosis of migraine was erroneous (R. at 252).

Thus, the RO reduced his rating for migraine to 0%, apparently determining that he did not suffer

from migraine – a determination that was consistent with the most recent medical opinions at the

time. R. at 254; see R. at 252.

Mr. Richardson also asserts that the Board's statement of reasons or bases regarding its

finding that there was no CUE in the May 1946 RO decision is inadequate. Appellant's Br. at 15-19;

see 38 U.S.C. § 7104(d)(1). This argument is without merit. He does not allege that the Board failed

to address fully any of his arguments regarding CUE in the May 1946 RO decision. Under the guise

of reasons or bases, he merely reasserts the same arguments that he makes regarding the merits of

his request for revision on the basis of CUE. Moreover, to the extent that he argues that the Board

should have addressed any RO decisions based on new medical diagnoses rendered after May 1946,

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we note that these subsequent decisions are based on evidence not of record in May 1946, and do

not establish CUE in the May 1946 RO decision. See Russell, 3 Vet.App. at 314 (stating that a new

medical diagnosis that "corrects" an earlier error is not CUE); cf. 38 C.F.R. § 20.1403(d)(1).

Therefore, the Board's finding that there was no CUE in the May 1946 decision will be affirmed.

III. CONCLUSION

After consideration of Mr. Richardson's and the Secretary's pleadings, and a review of the

record, the Board's September 5, 2003, decision that there was no CUE in the August 1944 RO

decision is VACATED and that matter is REMANDED for further proceedings consistent with this

decision. The Board's decision that there was no CUE in the May 1946 RO decision is AFFIRMED.

KASOLD, Judge, concurring: I concur in the Court's holding that Mr. Richardson's assertion

that the 1944 RO decision failed to construe his pleadings to raise a claim was properly brought as

a request to revise that decision based on CUE and that this matter must be remanded in light of

Andrews and for application of Roberson. I disagree with the majority's discussion as to how the

Board or RO should proceed on remand. I believe a finding on remand that the 1944 RO failed to

construe Mr. Andrews' pleadings to raise a claim would constitute CUE in that decision, with the

manifestly changed outcome being the processing of the claim. See Andrews v. Nicholson, 421 F.3d

1278, 1284 (Fed. Cir. 2005) ("[W]hen the VA violates Roberson by failing to construe the veteran's

pleadings to raise a claim, such claim is not considered unadjudicated but the error is instead

properly corrected through a CUE motion[.]"); see also Bingham v. Nicholson, 421 F.3d 1346, 1349

(Fed. Cir. 2005) (finding that the 1950 Board's disallowance of claim was a final decision and that

the Secretary's "failure to consider all aspects of a claim does not render a decision non-final but

instead 'is properly challenged through a CUE motion.'") (citing Andrews, supra); Roberson v.

Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (finding in the context of a request for revision on

the basis of CUE that a final RO decision failed to construe claimant's pleadings to include a TDIU

claim and reversing); Nelson v. Principi, 18 Vet.App. 407, 409 (2004) (noting that Federal Circuit

in Norton v. Principi, 376 F.3d 1336, 1338-39 (2004), rejected arguments that procedural violations

in prior final decision could render that decision nonfinal, or that RO decision remained

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unadjudicated because the RO failed to sympathetically read his claim, and noting Mr. Nelson had

not argued CUE).

Moreover, on remand, because Mr. Richardson's request is one for revision based on CUE,

the 1944 RO decision that is being attacked should be reviewed in the context of the law, regulations,

and standards generally applied in requests for revision based on CUE and filed under 38 U.S.C.

§ 5109A. See, e.g., Pierce v. Principi, 240 F.3d 1348, 1355 (2001) (noting that final RO decisions

are entitled to a presumption of validity); Haines v. West, 154 F.3d 1298 (Fed. Cir.1998), cert.

denied, 526 U.S. 1016 (1999) (noting that CUE is the type of error "about which reasonable minds

could not differ"); Eddy v. Brown, 9 Vet.App. 52, 57 (1996) (finding that CUE must be based on the

record and the law that existed at the time of the prior decision).

I also write to contrast Andrews with two situations not present here, and to which the CUE

analysis in Andrews is not applicable. First, the CUE aspect of Andrews is inapplicable to cases in

which an RO decision or certain subsequent procedural rights were never provided with regard to

a claim for VA benefits or the pleadings of a claimant for VA benefits. In such cases, the entire

claim for benefits and all aspects of that claim remain open – in an unadjudicated status – and the

claim can be pursued in a non-CUE context. See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995)

(allowing claimant pursuing claim to reopen to assert that his original claim was never final because

no Statement of the Case (SOC) had been provided); Hauck v. Brown, 6 Vet.App. 518, 519 (1994)

(allowing claimant pursuing an increased rating claim to assert that his claim was never final because

the Secretary failed to mail him a copy of the Board decision pursuant to 38 U.S.C. § 7104(e)); Kuo

v. Derwinski, 2 Vet.App. 662, 666 (1992) (allowing claimant pursuing an increased rating claim to

assert that he was entitled to an earlier effective date because no SOC had been provided); Ashley

v. Derwinski, 2 Vet.App. 307, 311 (1992) (finding claim in non-final status when the Secretary failed

to mail a claimant a copy of the Board decision pursuant to 38 U.S.C. § 7104(e)(3)); see also Cook

v. Principi, 318 F.3d 1334, 1340 (2002) (citing favorably Tablazon, Hauck, Kuo, and Ashley, all

supra, and finding a non-final claim occurs when "the time for appealing either an RO or a Board

decision did not run where the [Secretary] failed to provide the veteran with information or material

critical to the appellate process"); Woznick v. Nicholson, 19 Vet.App. 198, 201-02 (2005) (directing

the Secretary to issue an SOC as to the appellant's claim).

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Second, the CUE aspect of Andrews is not applicable to a failure of the RO to adjudicate an

informal claim for an increased disability rating and associated benefits, including TDIU, that arises

from VA medical exams or hospitalization reports. See 38 C.F.R. § 3.157(b)(1) (2005); Norris v.

West, 12 Vet.App. 413, 422 (1999) (determining that an informal claim for a TDIU rating reasonably

raised to the RO via VA medical records was not adjudicated and thus the claim was not final for

purposes of CUE attack); see also Roberson (explicitly distinguishing the holding in Norris that an

informal claim for TDIU benefits arising from VA medical records had never been adjudicated and

therefore had not become final, with the circumstances in Roberson, which involved a claim for a

TDIU rating presented by the veteran in his original claim for benefits that had not been processed

because the pleadings were not sympathetically read).

One notable distinction between the formal claim or pleadings of the claimant and an

informal claim based on medical records is that in the former the claimant makes a specific request

for benefits, is presumably knowledgeable about what benefits he is seeking and the bases therefor,

and is presumably capable of appealing a decision that does not provide all of the benefits sought.

See, e.g., Roberson, 251 F.3d at 1383 (stating that Roberson's original medical disability claim was

decided by the RO and was the specific request for benefits for which Roberson sought the highest

rating possible). In the latter situation, however, the entire claim and the benefits arising from that

claim are generated by medical reports and are initiated pursuant to regulation, without a specific

claim being filed by claimant. See Allin v. Brown, 10 Vet.App. 55, 58 (1997) (hospital report may

constitute an informal claim for increased benefits and assignment of an earlier effective date that

corresponds to date of hospital report); Servello v. Derwinski, 3 Vet.App. 196, 199 (1992) (stating

that § 3.157 (b) does not require the veteran to identify the report as a claim or to identify the benefits

sought).

In the instant case, the RO rendered a decision with regard to Mr. Richardson's claim for

disability compensation. That decision became final and, pursuant to Andrews, Mr. Richardson's

claim that the RO erred "by failing to construe [his] pleadings to raise a claim, [ ] is not considered

unadjudicated but the error is instead properly corrected through a CUE motion[.]" Andrews, supra.

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MOORMAN, Judge, concurring: I write separately to further discuss the state of the law

following Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005), and specifically I conclude that

filing a motion for revision of a prior final RO or Board decision on the basis of CUE is not the only

way in which to raise the issue of an unadjudicated pending claim.

I conclude that the Federal Circuit in Andrews stated a relatively narrow conclusion that was

based on the particular fact pattern and procedural posture of that case. In Andrews, VA raised for

the first time on appeal, as an argument to defeat the United States Court of Appeals for the Federal

Circuit's (Federal Circuit) exercise of jurisdiction, the possibility that a claim for TDIU was still

pending and unadjudicated. 421 F.3d at 1281. However, in Andrews, the final decision by VA had

been rendered after the facts that gave rise to the possibility of a TDIU rating were known and should

have been considered by VA in determining that aspect of the original claim, the assignment of the

disability rating. Id. at 1279-80; see Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (noting

the five elements of a claim for service connection); Fenderson v. West, 12 Vet.App. 119, 125

(1999). The Court opined that, under these circumstances, "when the VA violates Roberson[ v.

Principi, 251 F.3d 1378 (Fed. Cir. 2001)], by failing to construe the veteran's pleadings to raise a

claim, such a claim is not considered unadjudicated but the error is instead properly corrected

through a CUE motion[.]" Andrews, 421 F.3d at 1284. The presence of an underlying final decision

is key to this conclusion.

It is clear that there must be a finding that there is a final decision as to a claim before a

revision based on CUE will lie. See May v. Nicholson, 19 Vet.App. 310, 314-19 (2005); Link v.

West, 12 Vet.App. 39, 45 (1998); Best v. Brown, 10 Vet.App. 322, 325 (1997). And, if there is such

a final decision as to the claim in issue, only a motion for revision on the basis of CUE or a claim

to reopen for new and material evidence will lie. Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir.

2002) (noting the two statutory exceptions to the rule of finality). In discussing TDIU, this presents

a troubling problem. For years, VA and this Court's jurisprudence have discussed a "claim for

TDIU." The implication is that TDIU is a separate claim. But, the Federal Circuit in Roberson and

again in Andrews clearly found that TDIU, reasonably raised before a final decision on the

underlying disability claim, is incorporated as an element of that claim and is finally decided when

the underlying disability claim is rated. See Roberson, 251 F.3d at 1384 (noting evidence of TDIU

17

submitted at the time the application for VA disability compensation was filed and holding that the

subsequent CUE motion addressing the RO's failure to consider TDIU in the final RO decision was

appropriate because "Roberson's claim has been finally decided by the RO"); see also Andrews,

421 F.3d at 1281. On the other hand, there are circumstances where TDIU clearly can constitute a

separate claim. One such circumstance is illustrated in Norris v. West, 12 Vet.App. 413 (1999),

where this Court found that there were pending, unadjudicated claims for TDIU based on the fact

that no final decision had been made concerning the informal claims for an increased rating

(implicating TDIU) that were raised years after the initial RO decision on the appellant's claim for

service connection. The Federal Circuit, in Andrews, supra, saw no necessity to discuss Norris,

supra, because, in my view, it perceived no conflict with Norris, supra. Therefore, I conclude that

a final decision concerning a claim remains the indispensable antecedent for a finding of CUE and

provides the explanation for the different treatment of TDIU issues in Andrews and Norris, both

supra.

The Federal Circuit further reinforced this conclusion in Bingham v. Nicholson, 421 F.3d

1346, 1349 (Fed. Cir. 2005), in finding that a VA failure to consider all possible theories, including

presumptive theories, for service connection does not preclude a decision on the claim for service

connection from being final; rather, such error results in an incomplete, yet final, adjudication of the

claim that can be subject to a CUE attack. The Court concluded that, as to the appellant's assertion

that failure to consider one theory of service connection constituted a legal error that precluded

finality, "the sole vehicle in which to properly pursue that challenge is a CUE claim." 421 F.3d at

1349. The Federal Circuit then also noted the holding in Andrews that "VA's failure to consider all

aspects of a claim does not render its decision non-final but instead 'is properly challenged through

a CUE motion.'" Id.

Nothing in these decisions, however, leads me to conclude that every disability listed by a

veteran in a single application for VA disability compensation is necessarily encompassed within

a final decision by the RO or Board that expressly adjudicates only one of the claimed disabilities.

One possible reading of Andrews is that a decision as to one of several disability claims

simultaneously filed, as part of the same application for benefits, would constitute a final decision

as to all. That reading would lead to the conclusion that, following a final decision as to one of the

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claimed disabilities, the veteran's subsequent request that VA process the other claims that were part

of the same application could be asserted only in CUE motions, not as requests to process pending,

unadjudicated claims. I do not agree with such a reading. As the Court indicated in Beverly v.

Nicholson, 19 Vet.App. 394, 404-05 (2005), it "would be illogical and unfair . . . to the appellant to

[make him or her] wait until the Board decision is final and then face the high burden of proving

CUE when any other error can be addressed immediately and more favorably when raised in a timely

manner."

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