Michael W. Canady v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 03-1021

MICHAEL W. CANADY , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided September 7, 2006 )

Michael W. Canady, pro se.

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

Mayerick, Deputy Assistant General Counsel; Catherine A. Chase, Acting Deputy Assistant General

Counsel; and Gary E. O'Connor, all of Washington, D.C., were on the brief for the appellee.

Before KASOLD, MOORMAN, and DAVIS, Judges.

KASOLD, Judge, filed the opinion of the Court. DAVIS, Judge, filed an opinion concurring

in part and dissenting in part.

KASOLD, Judge: Veteran Michael W. Canady appeals pro se from two July 31, 2002, Board

of Veterans' Appeals (Board) decisions. In the first decision (Decision 1), the Board denied an

effective date earlier than April 20, 1993, for the award of service connection for post-traumatic

stress disorder (PTSD) and for a total disability rating based on individual unemployability (TDIU).

Record (R.) at 1-11. In the second decision (Decision 2), the Board dismissed, without prejudice

to refiling, a request for revision on the basis of numerous assertions of clear and unmistakable error

(CUE) in the Board's April 1991 decision denying service connection for PTSD. R. at 13-30. On

November 29, 2002, and again on May 14, 2003, Mr. Canady filed requests for reconsideration as

to both decisions with the Board Chairman. Both requests were denied, on March 14, 2003, and

September 5, 2003, respectively. On April 26, 2005, a single judge of the Court issued a decision

affirming Decision 1 and dismissing the appeal as to Decision 2 for lack of jurisdiction. On June

20, 2005, the Court granted Mr. Canady's motion for a panel decision and withdrew the single-judge

decision. For the reasons set forth below, Decision 1 will be affirmed and Decision 2 will be set

aside and the matter remanded for adjudication.

I. BACKGROUND

Mr. Canady served on active duty in the U.S. Army from September 1966 to August 1968,

including service in Vietnam. R. at 32. In July 1988, he sought VA benefits for "delayed stress

syndrome – Viet-nam." R. at 106-09. In connection with that claim, Mr. Canady underwent a VA

examination in September 1988, and the examiner noted that there "is a possibility that Mr. Canady

does have some [PTSD,] which has resolved to some extent." R. at 114. The VA regional office

(RO) determined that it could not rate Mr. Canady's claim for PTSD based on this diagnosis. R. at

117. In a June 1989 "Reconciliation of Diagnosis" report, a board of three VA staff psychiatrists

reported diagnoses of occupational problems and alcohol abuse, and "[p]ersonality disorder not

otherwise specified with avoidant, passive-aggressive and self-defeating traits." R. at 128. The

board of psychiatrists indicated that it did not appear that Mr. Canady met the criteria for a

continuing diagnosis of PTSD. R. at 127. In July 1989, the RO denied service connection for PTSD

on the ground that a PTSD diagnosis had not been rendered. R. at 135-36. Mr. Canady appealed

(R. at 168, 177-81, 183), and in April 1991, the Board denied his claim for service connection for

PTSD (R. at 198-202). Mr. Canady did not appeal and consequently that decision became final.

In Apri1 1993, Mr. Canady filed a claim for VA benefits for, inter alia, "nerves" and "stress."

R. at 218-21. After subsequent development and an initial denial of his claim (R. at 300-02, 354-56,

421-23, 433-35, 440, 454-59, 479-80), in July 1996 the RO granted Mr. Canady's claim, awarded

service connection for PTSD, and assigned a 30% disability rating effective from February 1994 (R.

at 490-95). Mr. Canady disagreed with the assigned rating and, in June 1997, he was assigned a

70% rating for his PTSD and was granted TDIU, both effective from February 1994. R. at 497,

1041-45. Mr. Canady continued to disagree with the effective date assigned and sought an effective

date of July 1988, the date of his initial claim. R. at 1047.

In an April 1998 decision following a personal hearing, a VA hearing officer granted an

earlier effective date of April 1993 for Mr. Canady's award of service connection for PTSD and the

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assignment of a TDIU rating. R. at 1096-98. In July 1998, Mr. Canady expressed his continued

disagreement with the effective date assigned. R. at 1108-10. In November 1999, Mr. Canady also

filed a request for revision on the basis of CUE in the April 1991 Board decision. R. at 1135-45.

In May 2000, the Board issued two separate decisions: in the first decision, the Board denied an

effective date earlier than April 1993 for the award of service connection for PTSD and for a TDIU

rating (R. at 1164-73) and, in the second decision, the Board determined that the April 1991 Board

decision denying service connection for PTSD was not the product of CUE (R. at 1148-60). On

appeal, the Court granted the Secretary's motion to remand both matters. R. at 1176-81, 1184.

On remand, the Board issued the decisions on appeal. R. at 1-30. With regard to the

effective date for Mr. Canady's award of service connection for PTSD, the Board in Decision 1

stated the following:

The threshold issue is whether the veteran submitted a claim for PTSD between

April 30, 1991 (the date of the Board decision) and April 20, 1993 (the current

effective date), upon which an earlier effective date could be established. Normally,

once a veteran files a claim, the claim remains open and pending until final action

is taken by the RO. . . .

After a review of the claims file, the Board finds that the only written

communication received from the veteran in the period between the Board decision

of April 30, 1991, and the VA Form 21-526, which was received on April 20, 1993,

was the copy of the June 1991 Power of Attorney and Fee Agreement document

between the veteran and his then attorney. However, no specific mention was made

regarding the veteran's PTSD claim. Accordingly, this document does not constitute

a formal or informal claim for benefits.

R. at 8-9 (citations omitted). The Board further discussed the medical treatment records in the file

for the period from April 1991 to April 1993 and concluded that the records showed "no treatment

for PTSD during that period," and that Mr. Canady "did not indicate his intent to seek service

connection for PTSD during [that] period." R. at 9. It also concluded that there was no legal basis

for the assignment of an earlier effective date for Mr. Canady's award of service connection for

PTSD. R. at 9. In addition, with regard to the effective date for the assignment of a TDIU rating,

the Board noted that PTSD was Mr. Canady's only service-connected disability and concluded that,

because a TDIU rating is warranted only "when the veteran is unemployable by reason of a

service-connected disability," the Board could not grant an effective date for the TDIU rating that

was earlier than the effective date for his award of service connection for PTSD. R. at 9.

3

With regard to Mr. Canady's request for revision on the basis of numerous CUE assertions

in the April 1991 decision, the Board in Decision 2 concluded that "the allegations advanced in the

motion do not set forth clearly and specifically the alleged clear and unmistakable errors of fact or

law in the Board decision, including how the result of the April 1991 Board decision would have

been manifestly different but for the error[s]" and, on that basis, the Board dismissed the request for

revision without prejudice to refiling. R. at 30.

On appeal to the Court, Mr. Canady argues that he is entitled to an earlier effective date for

his award of service connection for PTSD and for the assignment of a TDIU rating, and that the

Board erred by dismissing his request for revision. See, e.g., Appellant's Brief (Br.) at 4-9, 15-19,

21. The Secretary argues that there is a plausible basis in the record for the Board's determinations

regarding the effective date for Mr. Canady's award of service connection for PTSD and his TDIU

rating. Secretary's Br. at 11-13. In that regard, he contends that the effective date was properly

based on the date of Mr. Canady's April 1993 reopened claim. Id. at 12. The Secretary further

asserts that the Board did not err in dismissing, without prejudice to refiling, Mr. Canady's request

for revision. Id. at 13-18. Finally, in response to the Court's request for supplemental briefing, the

Secretary asserts that the Court "may" have jurisdiction to review the dismissal of a request for

revision under § 20.1404(b) "for the limited and sole purpose of deciding whether the motion was

pled with the required level of specificity such that it should be addressed by the Board on the

merits." Secretary's Response to Court Order Dated June 28, 2005, at 3-4.

II. ANALYSIS

A. Decision 1 – Effective Date

A Board determination of the proper effective date is a finding of fact that the Court reviews

under the "clearly erroneous" standard set forth in 38 U.S.C. § 7261(a)(4). See Evans v. West,

12 Vet.App. 396, 401 (1999). In this regard, section 7261(a)(4) directs the Court to "reverse or set

aside" any "finding of material fact adverse to the claimant . . . if the finding is clearly erroneous."

38 U.S.C. § 7261(a)(4). "'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 v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Of course, if the Board's "'account of the

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evidence is plausible in light of the record viewed in its entirety, the court of appeals may not

reverse it.'" Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer City, 470 U.S. 564,

573-74 (1985)). The determination of the effective date for an award based on an original claim or

a reopened claim is governed by 38 U.S.C. § 5110(a), which provides: "Unless specifically provided

otherwise in this chapter, the effective date of an award based on an original claim[ or] a claim

reopened after final adjudication. . . shall be fixed in accordance with the facts found, but shall not

be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a); see Morris v. West,

13 Vet.App. 94, 97 (1999); 38 C.F.R. § 3.400 (2005).

It is undisputed that Mr. Canady's original claim for service connection for PTSD was denied

in the April 1991 Board decision. R. at 198-202. Mr. Canady did not appeal that decision and it

therefore became final. See 38 U.S.C. § 7105(a)-(c) (where an appeal is not initiated by filing of

a Notice of Disagreement within one year after an RO decision, "the action or determination shall

become final"). As the Board found and the record on appeal reflects, Mr. Canady filed a claim to

reopen in April 1993 and there was no written communication from Mr. Canady that could be

construed as either a formal or informal claim to reopen his PTSD service-connection claim between

the final April 1991 Board decision and the April 1993 claim to reopen. See 38 C.F.R. §§ 3.155

(2005) (informal claims, to include informal claims to reopen); 3.156 (2005) (claim to reopen

previously adjudicated final claims); see also Sagainza v. Derwinski, 1 Vet.App. 575, 579 (1991)

(recognizing informal claim to reopen under § 3.155(c)); R. at 6, 8-9, 218-21. Accordingly, the

Board was not clearly erroneous in finding that the date of the April 1993 claim to reopen (which

resulted in the development that led to the award of service connection for PTSD) was the

appropriate effective date for Mr. Canady's award of service connection for PTSD. See Morris,

supra. As to Mr. Canady's TDIU rating, the Board correctly noted that PTSD is Mr. Canady's only

service-connected disability and that, as a matter of law, the assignment of a TDIU rating could not

be effective earlier than the effective date of his award of service connection. See 38 C.F.R.

§ 4.16(a) (2005) (requiring that an award of TDIU relate to one or more service-connected

disabilities); see also R. at 9. Accordingly, the Court will affirm Decision 1.

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B. Decision 2 – Clear and Unmistakable Error

With regard to the Board's dismissal of Mr. Canady's request for revision on the basis of

CUE pursuant to 38 C.F.R. § 20.1404(b) without prejudice to refiling, this type of dismissal is

designated as "not a final decision of the Board" by 38 C.F.R. § 20.1409(b). Inasmuch as the Court's

jurisdiction generally is over only "final" Board decisions,1 see 38 U.S.C. §§ 7252(a) (granting

jurisdiction over Board decisions), 7266(a) (authorizing an appellant to file an appeal from a "final"

Board decision); Matthews v. Nicholson, 19 Vet.App. 202, 205 (2005), the issue is raised as to

whether the Court has jurisdiction over Decision 2. Although the Secretary asserts that the Court

may have jurisdiction to review the dismissal of a request for revision under § 20.1404(b) for the

limited purpose of deciding whether the motion was pled with the required level of specificity, an

assertion to which Mr. Canady has not objected, the Court must affirmatively satisfy itself that it has

the jurisdiction to hear a case and cannot accept jurisdiction just because it is conceded to by one

or both of the parties. See Hayre v. Principi, 15 Vet.App. 48, 50 (2001), aff'd, 78 Fed. Appx. 120

(Fed. Cir. 2003) (table). We address this issue first because it pertains to our own jurisdiction. See

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) ("'On every writ of error or appeal,

the first and fundamental question is that of jurisdiction, first, of this court, and then of the court

from which the record comes.'" (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453

(1900))); see also Matthews, 19 Vet.App. at 204 (questions of jurisdiction "should generally be

addressed by the Court whenever they arise" (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir.

1996))).

1. Finality of a Board Dismissal

The Court's jurisdiction is defined by federal statute, and any regulatory enactment that

purports to limit the Court's jurisdiction is necessarily of no force or effect.2 See Int'l Union, United

Auto., Aerospace and Agric. Implement Workers of Am. v. Gen. Dynamics Land Sys. Div., 815 F.2d

1570, 1574 (D.C. Cir. 1987) ("Treaties aside, the Supremacy Clause provides that a federal statute

1

The Board has been granted original jurisdiction to adjudicate a request for revision of a Board decision based

on CUE, see 38 U.S.C. § 7111, to correct obvious error, see 38 U.S.C. § 7103(c), and to review attorney fee agreements,

see 38 U.S.C. § 5904(c)(2). See also Matthews v. Nicholson, 19 Vet.App. 202, 205 (2005) (citing sections 5904(c)(2)

and 7111 as examples of statutory provisions granting original jurisdiction to the Board).

2

Although the Secretary's regulations do not prescribe the Court's jurisdiction, they are otherwise binding on

the Agency. See 38 U.S.C. § 7104(c) (Board bound by VA regulations); 38 C.F.R. § 20.101(a) (2005) (same).

6

must always be superior to all other forms of law, including regulations." (citing U.S. CONST . art.

VI)); see also 38 U.S.C. §§ 7252(a), 7266(a). Generally, the Court has jurisdiction over final Board

decisions, and whether a decision is final for purposes of our jurisdiction is a question of law that

we determine de novo. See 38 U.S.C. § 7261(a)(1) (Court shall "decide all relevant questions of

law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or

applicability of the terms of an action of the Secretary"); see, e.g., Anglin v. West, 11 Vet.App. 361,

363 (1998) (finding on de novo review that a remand decision from the Board was not a final

decision for purposes of Court's jurisdiction); see also Matthews, supra.

(a) Dismissals in General

The dismissal of an action, even when done without prejudice, is a final decision that is

subject to appeal. This is because "denial of relief and dismissal of the case ended this suit as far

as the District Court was concerned." United States v. Wallace & Tiernan Co., 366 U.S. 793, 794-95

n.1 (1949); see also Ciralsky v. CIA, 355 F.3d 661, 666 (D.C. Cir. 2004) (quoting Wallace &

Tiernan Co., supra). The same is also generally applicable to a dismissal of a complaint without

prejudice when the court does not retain jurisdiction to permit amendment of the complaint and the

continuation of the proceedings. See De Tie v. Orange County, 152 F.3d 1109, 1111 (9th Cir. 1998)

(citing WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (holding that when a complaint

is dismissed with leave to amend, the order is nonfinal and not appealable in the absence of a further

order terminating the action)); Gray v. County of Dane, 854 F.2d 179, 181 n.3 (7th Cir. 1988) ("This

court regards dismissals without prejudice as unappealable interlocutory orders 'only when lower

courts, either expressly or by implication, retain jurisdiction over the disputes to permit

complainants to save by amendment otherwise deficient pleadings.'" (quoting In Re Ohio River Co.

v. Carillo, 754 F.2d 236, 238 (7th Cir. 1985))). Similarly, when a curing amendment is not possible

or the plaintiff chooses to stand on the filed pleadings and not file an amended complaint, the

dismissal of the complaint generally is appealable.3 See Ciralsky, 355 F.3d at 666 n.1 (citing Welch

3

For example, when a district court determines that amending a complaint would be an exercise in futility but

nonetheless dismisses the complaint without prejudice, see De'Lonta v. Angelone, 330 F.3d 630, 633 n.3 (4th Cir. 2003),

when a complaint is dismissed without prejudice for failure to effect service of process, see Welch v. Folsom, 925 F.2d

666, 668 (3d Cir. 1991)), or when the statute of limitations will run in the interim period, see Ahmed v. Dragovich,

297 F.3d 201, 207 (3d Cir. 2002); Ordower v. Feldman, 826 F.2d 1569, 1672 (7th Cir. 1987); see also Ciralsky, 355 F.3d

at 666 n.1.

7

v. Folsom, 925 F.2d 666, 668 (3d Cir. 1991) ("If the plaintiff cannot cure the defect . . . or elects to

stand on the dismissed complaint, however, . . . the order of dismissal is final and appealable.")).

(b) Board Dismissal of a Request for Revision Based on CUE

Pursuant to 38 C.F.R. § 20.1404(b) (2005), when a request for revision fails to comply with

the pleading requirements, it "shall be dismissed without prejudice to refiling under [subpart O,

38 C.F.R. §§ 20.1400-1411]." Although the request for revision is dismissed without prejudice, it

nevertheless is dismissed, and adjudication will begin again only upon the filing of a new request.

There is no procedure for simply amending the request for revision and permitting the process to

continue in the same proceeding. Thus, the dismissal of a request for revision has the same effect

as a dismissal of an action without prejudice, or dismissal of the complaint when amending action

is not permitted such that the proceedings could continue.

Moreover, because each request for revision on the basis of CUE must be adjudicated as a

separate and distinct request for revision, an original request for revision rejected by the Board for

inadequate pleading would be foreclosed from further review if not appealable, because that request

must be modified before it is refiled or it presumably would suffer another dismissal if refiled

without modification. Inasmuch as only the modified request for revision would ultimately be

decided by the Board, an appeal of that decision would not permit judicial review of the previously

rejected request for revision. Thus, when a request for revision on the basis of CUE is dismissed

by the Board for lack of specificity, it is indeed a final decision with regard to that request, thus

leaving appellate review as the only remedy if such dismissal was in error.4 In this sense, although

the dismissal of a request for revision is not intended to be a final decision of the Board for res

judicata purposes, (38 C.F.R. § 20.1409(b); see also Andre v. Principi, 301 F.3d 1354, 1361 (Fed.

Cir. 2002) (each theory of CUE must be adjudicated as a separate and distinct request for revision

so that preclusive effect of res judicata bars refiling only as to that particular assertion of CUE), if

4

Extraordinary relief generally is not an appropriate remedy for a Board dismissal based on inadequate

pleading. See Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382 (1953) (the "traditional use of the writ in aid of

appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful

exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so"); De Beers

Consol. Mines v. United States, 325 U.S. 212, 217 (1945) (mandamus may "not be availed of to correct a mere error in

the exercise of conceded judicial power"); see also Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002)

("'extraordinary writs cannot be used as substitutes for appeals'" (quoting Bankers Life & Cas. Co., 346 U.S. at 383)).

8

the Court lacks jurisdiction to review such a dismissal, the effect, as to that specific request for

revision, would be that of a final decision.

In light of the above, we hold that a Board decision dismissing a request for revision without

prejudice to refiling pursuant to § 20.1409(b), is a final decision of the Board for purposes of the

Court's jurisdiction.

2. The Board's Dismissal

Although the Board correctly noted the requirement that a request for revision on the basis

of CUE must be pled with specificity, to include why the outcome would have been manifestly

different but for the alleged error, see Fugo v. Derwinski, 6 Vet.App. 40, 44 (1993); see also Bustos

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

outcome" language); 38 C.F.R. § 20.1404(b), it failed to take into consideration that the Board is

nonetheless required to read a pro se request for revision sympathetically, see Andrews v. Nicholson,

421 F.3d 1278, 1282-83 (Fed. Cir. 2005); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)

(with respect to "all pro se pleadings, [Board and Secretary are required to] give a sympathetic

reading to the veteran's filings" (citing Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001))). The

requirement to sympathetically read the pleadings of a pro se claimant applies even though

regulations set forth specific pleading requirements. For example, the Board has been found to have

erred when it failed to sympathetically read the claimant's pleadings to discern an informal claim,

even though the pleadings did not specifically "identify the benefit sought" as required under

38 C.F.R. § 3.155(a). See Roberson, 251 F.3d at 1382-84.

In conducting a sympathetic reading of a request for revision, the Board should view the

claim in light of the fact that it is the assertion of CUE itself that requires specificity, because it is

the adjudication of that assertion upon which res judicata ultimately will act. See Andre, 301 F.3d

at 1361 (each specific theory underlying CUE attack on final decision constitutes separate claim);

Link v. West, 12 Vet.App. 39, 44 (1998) ("Under the principle of res judicata, 'once there is a final

decision on the issue of [CUE] that particular [request for revision on the basis of CUE] may not be

raised again.'" (quoting Russell v. Principi, 3 Vet.App. 310, 315 (1992) (en banc))). On the other

hand, a manifestly changed outcome might be inferred from pro se pleadings, even though not

explicitly stated. See Sondel v. West, 13 Vet.App. 213, 221 (1999) ("when it is clear, on the face of

the decision being assailed for CUE, that the error alleged did in fact occur and would manifestly

9

have changed the outcome of the case, the Court will reverse"); Olson v. Brown, 5 Vet.App. 430,

434 (1993) (if assertion that RO did not properly apply the "clear and convincing" standard required

to terminate a total disability rating based on individual unemployability is substantiated, such a

failure "would have manifestly changed the outcome of the decision" because the standard to reduce

the benefits had not been met); see also Roberson, supra.

Moreover, although the Board cannot adjudicate a CUE theory that is wholly distinct from

that which is presented, see Huston v. Principi, 18 Vet.App. 395, 402 (2004); see also Jarrell v.

Nicholson, ___ Vet.App. ___, ___, No. 03-0572, slip op. at 8-9, 2006 WL 2434262, at *5-6 (Aug.

24, 2006) (en banc); but see 38 U.S.C. §§ 7103(c) (authorizing Board sua sponte to correct obvious

error in the record), 7111(c) (authorizing Board sua sponte to review for CUE in prior Board

decisions), a sympathetic reading of the CUE theory may result in clarifying modifications, cf.

Jordan v. Principi, 17 Vet.App. 261, 270-71 (2003) (holding that on appeal to the Board an

appellant is not bound to the exact words used in a request for revision on the basis of CUE in a

Board decision and may "rephrase and provide additional argument and support for the same basic

CUE argument presented"), aff'd sub nom. Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005).

In this case, the Board identified numerous assertions of CUE in the prior proceedings, but

it dismissed all of them because Mr. Canady failed to set forth what the manifestly different outcome

would have been but for each CUE. Because a sympathetic reading should be conducted by the

Board in the first instance, we will not address all of the allegations of error. However, we note that

for some of Mr. Canady's asserted CUE theories, the manifestly changed outcome is arguably

obvious from the context of his pleadings. For example, Mr. Canady's original claim for disability

compensation on the basis of service-connected PTSD was denied by the RO in July 1989 because

the required diagnosis of PTSD had not been made (R. at 136), and Mr. Canady asserted that the

Board in April 1991, in considering the appeal of the RO decision, failed to recognize that he had

been diagnosed with PTSD in a September 1998 VA examination. Without deciding the merits of

Mr. Canady's contention, we note that the implied manifestly different outcome is the grant of an

earlier effective date for the grant of service connection for Mr. Canady's PTSD. On remand, the

Board should identify those assertions of CUE, otherwise properly pled, for which a manifestly

changed outcome can be inferred from the pleadings upon a sympathetic reading, and proceed to

decide them on the merits.

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Although the Board dismissed Mr. Canady's request for revision and all assertions of CUE

without prejudice, we further note that its statement of reasons or bases appears to be written in

support of a finding on the merits on some of the theories of CUE. Again, without addressing the

merits of each allegation, we note as an example Mr. Canady's assertion that there was CUE in the

April 1991 Board decision because the Secretary failed to provide him, inter alia, with an adequate

Statement of the Case (SOC) or an opportunity for a personal hearing. R. at 15. The Board

expressly determined that the SOC was adequate in that it provided Mr. Canady with "the correct

laws and regulations." The Board further determined that Mr. Canady "specifically [indicated] that

he did not desire a personal hearing." R. at 15-16.

Additionally, the statement of reasons and bases indicates that the Board believed some

assertions of CUE to be procedurally defective for alleging error that amounted to a differing view

of the weighing of the facts. Such an assertion, like an assertion that the Secretary did not comply

with his duty to assist, cannot form the basis of a successful request for revision. See Szemraj,

357 F.3d 1376 ("[T]he failure to assist in developing the evidentiary record cannot constitute

CUE . . . ."); Livesay v. Principi, 15 Vet.App. 165, 173 (2001) (en banc) ("In order for there to be

a valid claim of [CUE], . . . [t]he claimant, in short, must assert more than a disagreement as to how

the facts were weighed or evaluated." (quoting Crippen v. Brown, 9 Vet.App. 412, 418 (1996))).

Nonetheless, such allegations are not properly dismissed as pleading errors when the request for

revision otherwise meets the requirements of a properly pled request for revision; rather, a request

for revision based on such CUE theories is to be denied on the merits because such purported errors

cannot constitute CUE. See id.

For the reasons stated above, the decision of the Board will be set aside. See Simmons v.

Principi, 17 Vet.App. 104, 115 (2003) (Board's statement of reasons or bases is inadequate when

it is "neither helpful to the veteran, nor clear enough to permit effective judicial review, nor in

compliance with statutory requirements"). On remand, the Board should be careful to identify and

adequately discuss in its statement of reasons and bases those assertions of CUE that can and should

be decided on the merits and it should distinguish them from those that fail to be pled with the

requisite specificity, given a sympathetic reading, such that they warrant dismissal without prejudice

under § 20.1404(b). See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995)

(Board required to include in its decision a written statement of the reasons or bases for its findings

11

and conclusions on all material issues of fact and law presented on the record); Gilbert, 1 Vet.App.

at 56-57 (1990) (same).

III. CONCLUSION

For the foregoing reasons, Decision 1 is AFFIRMED. As to Decision 2, the Board's decision

to dismiss Mr. Canady's request for revision for lack of specificity is SET ASIDE and the matter is

REMANDED for further action and adjudication consistent with this opinion. The Court expects

that the Board will provide expeditious treatment of the remanded matter. See 38 U.S.C. § 7112.

AFFIRMED as to Decision 1; SET ASIDE and REMANDED as to Decision 2.

DAVIS, Judge, concurring in part and dissenting in part: I join in the majority's opinion

insofar as it affirms the effective date established by the Board in Decision 1. There is no reason

to suggest that an effective date earlier than the date of the award of service connection is warranted

here. As to Decision 2, however, I believe that the majority's finding that this Court possesses

jurisdiction over a Board's dismissal of a CUE motion for inadequate pleading is contrary to the law

applied by the majority of circuits and aggrandizes this Court's jurisdiction at the expense of

veterans. It is the particular province of the Board to determine pleading sufficiency, and the

Secretary has decided that such determinations are not final appealable orders; this Court should

give deference to the Secretary's characterization of the Board's actions. The majority, concerned

by the improbable situation where the appellant elects to stand on the grounds of his dismissed

motion or where the Board arbitrarily dismisses CUE motions, ensures that processing time for cases

will be expanded while this Court deals, not with the merits of the appellant's issues, but with the

matter of pleading requirements. If this Court finds that the Board erred, the case still would need

to be remanded to the Board for a decision on the merits in the first instance, prolonging meaningful

adjudication and judicial review. For these reasons, and for the reasons that follow, I must

respectfully dissent.

A. Finality of Dismissals Without Prejudice

In federal appellate courts, generally, an order dismissing a complaint without prejudice is

neither final nor appealable because the deficiency may be corrected by the plaintiff without

affecting the cause of action. See Ciralsky v. CIA, 355 F.3d 661, 666 (DC Cir. 2004); see also

12

De'Lonta v. Angelone, 330 F.3d 630, 633 n.3 (4th Cir. 2003) (noting that dismissal of a complaint

without prejudice is not normally appealable); Welch v. Folsom, 925 F.2d 666, 668 (3d Cir. 1991)

(recognizing that dismissals of complaints without prejudice are generally not final for appellate

purposes); Elfenbein v. Gulf and W. Indus., Inc., 590 F.2d 445 (2d Cir. 1978). Courts have crafted

exceptions to this rule, such as considering the dismissal as final where refiling the complaint is

barred by a statute of limitations or res judicata, where no amendment can cure the defects in the

case, or where a district court divests itself of jurisdiction thereby terminating the action, rather than

just the complaint; the key factor, however, is the lower court's intent. See Norblad v. Veronex

Techs., Inc., 66 Fed. Appx. 741 (9th Cir. 2003) ("In determining whether or not the district court's

ruling was final, the focus is the 'effect the court intended it to have, rather than the label placed

upon it.'" (quoting Montes v. United States, 37 F.3d 1347, 1350 (9th Cir. 1994))); see, e.g., De Tie

v. Orange County, 152 F.3d 1109, 1111 (9th Cir. 1998); Welch, 925 F.2d at 668; Ordower v.

Feldman, 826 F.2d 1569, 1572 (7th Cir. 1987); Bragg v. Reed, 592 F.2d 1136, 1138 (10th Cir.

1979). Thus, the Court has a choice to make in deciding which path it will follow; the Court can

follow the general rule and treat the dismissal as interlocutory, or find that an exception should apply

and treat the dismissal as final. While on the surface either choice appears reasonable, other courts'

concerns giving rise to exceptions to the general rule are inapplicable; here, an appellant can always

amend the motion for revision based on CUE, no statute of limitations exist, res judicata is not an

issue, and the Board retains jurisdiction. Importantly, in this case, it appears the Board did not

intend to, nor could it, relinquish itself of jurisdiction over a subsequent, properly pled request for

revision. Finally, caseload considerations, judicial economy, and discretion given to the

administrative agency for factfinding in the first instance leads to the better choice of treating the

dismissals as interlocutory.

However, the majority determines that the Board's dismissal of a request for revision based

on CUE is a final decision for purposes of this Court's jurisdiction. Ante at 9. In so concluding, the

majority acknowledges that, when determining whether a dismissal without prejudice is final for the

purpose of appeals, courts have recognized a difference between dismissals of complaints and

dismissals of actions or dismissals of the case. See ante at 7-8. Nonetheless, the majority

inexplicably determines that this case is analogous to a dismissal of an action. While the majority

appropriately relies on the U.S. Supreme Court case United States v. Wallace & Tiernan Co., 336

13

U.S. 793 (1949), for the proposition that dismissal of an action is a final decision, the majority fails

to take the analysis further. The key here, as in Wallace & Tiernan, is the intent of the district court.

See id. at 794 n.1 ("That the dismissal was without prejudice to filing another suit does not make the

cause unappealable, for denial of relief and dismissal of the case ended this suit so far as the

[d]istrict [c]ourt was concerned." (emphasis added)). Importantly, the majority fails to apply the

facts here to its analysis, and fails to recognize that the dismissal of a complaint is like the dismissal

of an action only when it is the intent of the lower court to dismiss the complaint permanently. If

the majority were to apply the facts, it would have to acknowledge that the Board did not intend to

permanently dismiss the case; rather, it left the door open for the appellant to refile.

The majority suggests several reasons to support this conclusion. First, it finds persuasive

that "there is no procedure for amending the request and permitting the process to continue" and that

adjudication ends on dismissal of the request, reinitiated by filing a new request. Ante at 8. This

observation fails to recognize that when a complaint is dismissed without prejudice, generally, that

dismissal too ends the adjudication until the case is reinitiated by the filing of a new complaint.

Next, the majority makes the circular argument that a Board decision dismissing a request for

revision is final because that particular request must be modified or "it presumably would suffer

another dismissal," ante at 8; however, it is axiomatic that a dismissal of a particular complaint, or

any other pleading with leave to amend would be dismissed again if it was not modified. The

majority further reasons that "only the modified request for revision would ultimately be decided

by the Board, [and] an appeal of that decision would not permit judicial review of the previously

rejected request for revision." Id. Even so, if an appellant modifies and resubmits a motion that is

adjudicated by the Board, then the initial motion would be of no moment; the appellant would

receive an adjudication on the merits–one that could be appealed to this Court if the appellant

disagreed with the outcome. As long as a subsequent motion was adjudicated on the merits, what

need would an appellant have for review of a prior insufficiently pled motion? As shown below,

the majority would be hard pressed to find any court that would consider a dismissal of a pleading

"with leave to amend" a final decision of the lower court just because that particular pleading could

not be resubmitted without suffering the same fate. Nonetheless, I do not believe that the procedure

for amending the request or the mere fact that the appellant cannot repeatedly resubmit the same

motion should govern the analysis in this case.

14

Guidance on treatment of dismissals without prejudice can be gleaned from federal appellate

courts whose review of underlying decisions is limited to "final decisions" of district courts.

Compare 28 U.S.C. § 1291 (conferring jurisdiction over appeals from final decisions of district

courts) with 38 U.S.C. §§ 7266(a) (mandating that a claimant seeking to appeal a decision to this

Court must first obtain a "final decision of the Board") and 7252(a). Like VA's regulations

governing pleading requirements for CUE motions, federal courts have pleading requirements for

complaints filed in their courts. Compare FED . R. CIV . P. 8(a) (requiring a short and plain statement

of jurisdiction, claim, and relief sought) with 38 C.F.R. § 20.1404(b) (requiring clear and specific

allegations of the "errors[] of fact or law in the Board decision, the legal or factual basis for such

allegations, and why the result would have been manifestly different but for the alleged error").

The majority of federal courts employ various reasons for the distinction between dismissals

of complaints without prejudice and dismissals of actions without prejudice, the latter being a final,

appealable decision. See De Tie, 152 F.3d at 1111 (noting that a dismissal of an action is final, but

dismissal of a complaint is nonfinal); see also Elfenbein, 590 F.2d at 448 (recognizing that it is well

settled that a dismissal granting leave to amend is not final, and concluding that if the district court

dismisses the complaint without further comment, then the dismissal order is final because in that

case the district court intended to terminate the action). However, key to the determination that the

decision is final, is a clear manifestation by the trial court that it intends to end the case. See Great

Rivers v. Farmland Indus., 198 F.3d 685, 689 (8th Cir. 1999) (recognizing that to be a final decision,

there must be a "clear and unequivocal manifestation by the trial court" that, as far as the court is

concerned, that is the end of the case); see also Berke v. Bloch, 242 F.3d 131, 135 (3d Cir. 2001)

("[I]f the order specifically contemplates further activity by the [d]istrict [c]ourt, it is not considered

final."); Gray v. County of Dane, 854 F.2d 179, 182 n.4 (7th Cir. 1988) (finding the dismissal final

where "there is no indication that the district court intended to retain jurisdiction. The clear purpose

. . . was to end the proceeding in the district court and to permit immediate appeal"); Elfenbein, 590

F.2d at 448 n.1 (noting that the Ninth Circuit Court of Appeals regards dismissals of a complaint as

final only where the district court makes clear that "that the action could not be saved by any

amendment of the complaint"). That manifestation of intent is fundamental, even in those circuits

that employ an alternative basis to create finality in the lower court's dismissal. Indeed, the majority

relies upon Ciralsky, supra, for the proposition that a lower court decision may be appealed if

15

amendment to the complaint is impossible, or if the plaintiff chooses to stand on the pleadings as

filed.5 See ante at 7-8. However, in Ciralsky, the court gave the appellant 21 days to file an

amended complaint, and expressly warned the plaintiff that if he chose not to file an amended

complaint within that time, the plaintiff's case–not merely the complaint–would be dismissed. See

Ciralsky, 355 F.3d at 667. In contrast, here, neither did the appellant indicate that he chose to stand

on his motion as filed, nor did the Board intend to completely dismiss the appellant's action. Rather,

it intended to retain jurisdiction, stating that the appellant may file an amended motion, and no time

limit was placed on the appellant to do so.

Where there is a dismissal of a complaint, similar to a Board's dismissal of a request for

revision based on CUE, leave to amend the pleadings is generally implied. See Micklus v. Greer,

705 F.2d 314, 317 n.3 (8th Cir. 1983) ("[U]sually when a plaintiff's complaint is dismissed for

failure to comply with Rule 8(a) [of the Federal Rules of Civil Procedure], that dismissal is to be

with leave to amend."); Bertucelli v. Carreras, 467 F.2d 214, 215 (9th Cir. 1972) (noting that when

a complaint is dismissed because of a defective pleading, "ample opportunity for amendment should

be provided in all except the most unusual cases"). "[C]ourts often regard the dismissal without

prejudice of a complaint as 'not final, and thus not appealable . . . because the plaintiff is free to

amend his pleading and continue the litigation.'" Ciralsky, 355 F.3d at 666 (quoting Hoskins v.

Poelstra, 320 F.3d 761, 763 (7th Cir. 2003), and citing WMX Techs. v. Miller, 104 F.3d 1133, 1136

(9th Cir. 1997), and 19 JAMES W. MOORE , MOORE 'S FEDERAL PRACTICE § 201.14 (3d ed. 2003));

see also Am. Nat'l Bank and Trust Co. of Chicago v. Equitable Life Assurance Soc'y of the United

States, 406 F.3d 867 (7th Cir. 2005) (reasoning that a dismissal is final where the district court

washed its hands of the case and amending is futile); Elmore v. Lloyd, 30 Fed. Appx. 98 (4th Cir.

5

The Third and Ninth Circuit Courts of Appeal have adopted a rule to finality that finds a complaint dismissed

without prejudice as nonfinal except in special circumstances, such as when the plaintiff cannot cure the defect that led

to the dismissal or, a rule particular to those two circuits, the plaintiff elects to stand on the dismissed complaint. See,

e.g., Welch, 925 F.2d at 668; Lopez v. City of Needles, 95 F.3d 20 (9th Cir. 1996). Put another way, those circumstances

"must be such as to make it clear that the court determined that the action could not be saved by any amendment of the

complaint . . . thereby entitling the plaintiff to assume he had no choice but to stand on his complaint." Ruby v. Sec'y

of U.S. Navy, 365 F.2d 385 (9th Cir. 1966). Here, the majority fashions its approach, in part, from a rule that is particular

to the Third and Ninth Circuits although other circuits generally treat such dismissals as interlocutory, even when the

plaintiff "stands on" his or her complaint. It is important to note that, in this case, there is no indication by the Board

that he could not cure the defect in his motion; to the contrary, the Board left the door open for amendment by stating

that the appellant was free at any time to resubmit a CUE request. I also see no reason to include in our finality rule an

exception that an appellant may "stand on his complaint." Adopting such a rule is contrary to other circuits, and here,

would act essentially as an appeal of right, ignoring the intent of the Board and the principle of judicial economy.

16

2002) ("Because Elmore can exhaust his state court remedies and re-file his petition, his appeal of

the dismissal without prejudice is interlocutory and not subject to appellate review . . . ."); Berke,

supra (noting that a dismissal is final and appealable if the party seeking relief renounces any

intention to reinstate litigation or if the district court believes its ruling ends the litigation); Welch,

925 F.2d at 668 (noting that, generally, orders dismissing complaints without prejudice are not final

"because the plaintiff may cure the deficiency and refile the complaint"); Elfenbein, supra

(recognizing that dismissal granting leave to amend is not final, but where the dismissal ends the

action, that order is final); but see Davis Forestry Corp. v. Smith, 707 F.2d 1325 (11th Cir. 1983)

(reasoning that a dismissal without prejudice can be appealed but noting, in that case, that the district

court referred to its order as a "final order of dismissal"). Courts adopting this rule reason that "the

plaintiff may be able to amend his complaint to cure whatever deficiencies had caused it to be

dismissed." Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988); Gray,

supra (recognizing that dismissals without prejudice are unappealable interlocutory orders "only

when lower courts, either expressly or by implication, retain jurisdiction over the disputes to permit

complainants to save by amendment otherwise deficient pleadings"). Similarly compelling are

the arguments presented by courts that determine that finality for appellate purposes is based on the

effect that the dismissal has on the case. See Carr v. Grace, 516 F.2d 502, 503 n.1 (5th Cir. 1975)

("The appealability of an order depends on its effect rather than its language."). If the court's

dismissal allows the complainant to file an amended complaint, the dismissal is not considered final.

See Ordower, 826 F.2d at 1572. However, if a new complaint cannot be filed "'because of

limitations problems or otherwise, the action is treated as final and the order is appealable.'" Id.

(quoting Bragg, 592 F.2d at 1138); see also Campbell v. Mullins, No. 05-6024, 2005 U.S. App.

LEXIS 17252 (10th Cir. Aug. 16, 2005) (finding that if dismissal without prejudice finally disposes

of the case so that it is effectively excluded from the federal court, then it is a final, appealable

decision).

Additionally, the U.S. Supreme Court determined that a decision is considered final for

purposes of federal appellate court jurisdiction when the district court's decision "ends the litigation

on the merits and leaves nothing for the court to do but execute the judgment." Quackenbush v.

Allstate Ins. Co., 517 U.S. 706, 712 (1996); see Am. Nat'l, supra. Conversely, if the order

contemplates further activity by the district court that is not merely ministerial, it is not considered

17

final. See Berke, 242 F.3d at 135. The purpose for avoiding the piecemeal litigation encouraged

by the majority is that, as a general rule, "'a party is entitled to a single appeal, to be deferred until

final judgment has been entered, in which claims of district court error at any stage of the litigation

may be ventilated.'" Quackenbush, 517 U.S. at 712 (quoting Digital Equip. Corp. v. Desktop Direct,

Inc., 511 U.S. 863, 868 (1994).

The history of 38 C.F.R. § 20.1404 (2005) also provides guidance here. Previously, the law

required that the Board deny as a matter of law insufficiently pled CUE requests. See 38 C.F.R.

§ 20.1404 (2000). After a denial, the appellant would be barred from pursuing that request further.

See Disabled Am. Veterans v. Gober, 234 F.3d 682, 704 (Fed. Cir. 2000). When the regulation was

revised, it ensured that if an appellant filed an insufficient CUE motion, that would not be the end

of their request. In accordance with Disabled American Veterans, the Secretary amended § 20.1404

by requiring the Board to dismiss, rather than deny, requests that are inadequately plead "without

prejudice to refiling." 66 Fed. Reg. 35902. The Federal Register reflects that, to conform to that

change, § 20.1409(b) was amended "to provide that the dismissal without prejudice of a CUE

motion is not a final decision of the Board." 66 Fed. Reg. 35902; see 38 C.F.R. § 20.1409 (2005)

("[A] dismissal without prejudice under [38 C.F.R. § 20.1404(b)] . . . is not a final decision of the

Board.").

Based on the foregoing, I believe that dismissals of motions for revision based on CUE more

closely resemble dismissals of complaints than dismissals of actions. A dismissal based on

inadequate pleading does not reach the merits of the issue, and by regulation, the Board dismissal

must be without prejudice so as to permit the appellant the opportunity to amend the motion and

refile. Additionally, a key consideration in the above cases is whether the district court believes its

ruling ends the litigation. See Great Rivers, supra. That same question is critical here: Does the

Board believe its ruling ends the litigation? In this case, and with all other motions for revision

based on CUE, the Board retains jurisdiction, and an appellant may file an amended motion directly

with the Board instead of receiving an adjudication from the RO first. See 38 U.S.C. § 7111(e)

(noting that requests for revision based on CUE should be submitted directly to the Board).

Moreover, here the Board order stated that the appellant failed to plead CUE with the requisite

specificity, but then specifically contemplated further activity when it added that "[t]he veteran is

thus free at any time to resubmit a CUE [request] with respect to the April 1991 Board decision."

18

R. at 30. Although the Board did not require repleading within a certain period of time, it left the

door open for the appellant to refile with the Board a request for revision based on the same

underlying facts at any time. See Berke, 242 F.3d at 135. Because the appellant's motion can be

saved by amendment, the appellant is not barred from refiling based on res judicata, a statute of

limitations, or otherwise, and because the Board retains jurisdiction over the case, the Board's

dismissal without prejudice to refiling is essentially interlocutory in nature and should not be

reviewed here.

B. 38 C.F.R. § 20.1409

The majority provides only a cursory reference to 38 C.F.R. § 20.1409, see ante at 6, which

regulation seems, at least on its face, determinative of the issue here. That regulation provides that

the Board's dismissal without prejudice for failure to adequately plead a motion for revision based

on CUE "is not a final decision of the Board." 38 C.F.R. § 20.1409. The Secretary is expressly

authorized to "prescribe all rules and regulations which are necessary or appropriate to carry out the

laws administered by the Department and are consistent with those laws." 38 U.S.C. § 501.

Because substantial deference is given to the Secretary's interpretation of a statute, his interpretation

will not be set aside unless it is "arbitrary, capricious, or manifestly contrary to the statute."

Gallegos v. Principi, 283 F.3d 1309, 1312 (Fed. Cir. 2002) (noting that, unless the statute speaks

"directly" "to the precise question," under Chevron deference,6 "any ensuing [agency] regulation

is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or

manifestly contrary to the statute" (alteration in original) (citing United States v. Mead Corp., 533

U.S. 218, 229 (2001))). While I acknowledge that the Secretary's regulations cannot confer

jurisdiction on or divest jurisdiction from this Court, here, as noted above, the Secretary's regulation

is a reasonable characterization of the Board's action. Because the agency's regulation must be

accorded Chevron deference, I believe that the majority should have deferred to the Secretary's

characterization of the Board action as set forth in 38 C.F.R. § 20.1409.

C. Use of Petitions for Extraordinary Relief

Contrary to the majority's conclusion, appellate review is not the only remedy for the

erroneous dismissal of a request for revision. See ante at 8. In the unlikely event that the Board

6

The concept of "Chevron deference" refers to the deference afforded to an agency regulation as announced

in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).

19

repeatedly dismissed a request for revision based on CUE and thereby abused its discretion, a

petition for extraordinary relief is available. As a preliminary matter, the Board has no incentive

to arbitrarily dismiss cases for lack of pleading specificity. This is particularly so in light of the

Federal Circuit's consistent mandate that the Board give a sympathetic reading to a pro se appellant's

pleadings. See Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005); Roberson v. Principi,

251 F.3d 1378 (Fed. Cir. 2001). The dismissal is an invitation to replead, and an appellant's

subsequent filing would still need to be adjudicated. The only way that the Board could effectively

conclude a case would be to decide it on the merits, and allow the appellant to appeal the case to this

Court.

"Issuance of the writ is in large part a matter of discretion with the court to which the petition

is addressed." Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976). In the interest of judicial

economy, petitions are to be used in only extraordinary circumstances, thus one arguably erroneous

dismissal would not qualify. See DeBeers Consol. Mines, Ltd. v. United States, 325 U.S. 212 (1945)

(noting that writs of mandamus cannot be used "to correct a mere error in the exercise of conceded

judicial power. But when a court has no judicial power to do what it purports to do–when its action

is not mere error but usurpation of power–the situation falls precisely within the allowable use [of

writs]"). "The scope of a mandamus proceeding must be narrowly maintained else the same

impediments to justice and disservices to litigants produced by the appeal of an interlocutory order

would be present without compelling countervailing considerations." Kasey v. Molybdenum Corp.

of America, 408 F.2d 16, 19-20 (9th Cir. 1969). Although the majority is correct that an appellant's

belief that the Board erred does not, standing alone, provide a basis for a petition, a petition would

be appropriate in the unlikely event that the Board repeatedly and arbitrarily dismisses an appellant's

motion. Such multiple baseless dismissals by the Board would fall within this Court's ambit, and

a petition could be utilized to compel the Board to perform its duty. See Kerr, 426 U.S. at 402

(noting that the remedy of mandamus is a drastic one, to be invoked only in extraordinary

circumstances to confine a lower court to its lawful jurisdiction or to compel it to perform its duty

to exercise authority); Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382 (1953). The majority

fashions its holding today to allow appellants, as a matter of right, an appeal to this Court from the

Board's dismissal of their motion for revision based on CUE, even though the appellant can always

amend his filing and state his claim again directly to the Board. Because I believe that a petition for

20

extraordinary relief could be used in the unlikely event that the Board repeatedly acts arbitrarily,

there is simply no benefit that could arise from the majority's holding today.

The majority's opinion will expand this Court's jurisdiction to review matters addressing not

the merits of the appellant's argument, but whether a CUE motion contains specific and clear

allegations. Caselaw from the majority of other circuits refrains from addressing this type of matter

to foreclose the possibility of piecemeal litigation. This decision has the potential to increase the

time it will take for an appellant to receive a final judgment in his or her case. Even if this Court

were to find that the Board erred and the appellant had plead with specificity, the Court could not

adjudicate the claim; at most, it could remand the case back to the Board for the Board to address

the issues in the first instance. Alternatively, if we were to affirm the Board's holding, that

determination has no preclusive effect; by statute, the appellant can always amend and refile the

motion with the Board. See 38 U.S.C. § 7111(e). Because I believe the Court's decision will only

have the effect of expanding our caseload to include review of administrative matters and

lengthening the time it takes for an appellant to receive a decision on the merits, I respectfully

dissent.

21