Roderick C. Stallworth v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 04-0093

RODERICK C. STALLWORTH , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided November 15, 2006 )

Samuel M. Tumey, of Liberty, Mississippi, was on the brief for the appellant.

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

Mayerick, Deputy Assistant General Counsel; and Yvette R. White, all of Washington, D.C., were

on the brief for the appellee.

Before HAGEL, MOORMAN, and LANCE, Judges.

MOORMAN, Judge, filed the opinion of the Court. LANCE, Judge, filed a dissenting

opinion.

MOORMAN, Judge: The appellant, Roderick C. Stallworth, appeals through counsel a

January 8, 2004, decision of the Board of Veterans' Appeals (Board) that determined there was no

clear and unmistakable error (CUE) in a January 27, 1981, Board decision that denied restoration

of service connection for schizophrenia. Record (R.) at 1-9. The court has jurisdiction pursuant to

38 U.S.C. §§ 7252(a) and 7266(a) to review the January 2004 Board decision. For the reasons that

follow, the Court will vacate the decision on appeal and remand the matter for further proceedings

consistent with this opinion.

I. FACTS

The appellant served on active duty in the U.S. Army from May 1974 to July 1975. R. at 13.

His service medical records reveal that in April 1975 he was diagnosed with schizophrenia. R. at

16. A medical board found him medically unfit for further military duty and recommended that he

be referred to a physical evaluation board and transferred to a VA hospital. R. at 50, 135-36. A June

1975 medical record from the Biloxi, Mississippi, VA hospital states in pertinent part:

It was thought at first that his psychosis was due to his use of LSD and THC, but he

relapsed after a short period of hospitalization, and the diagnosis was changed to

schizophrenia. He improved on Mellaril, was considered unfit for further military

duty, and sent to this hospital for a short-term hospitalization. He feels he doesn't

need to be here. It is doubtful that we can keep him after he receives a discharge

from service. The diagnosis still remains moot. He seems to have recovered rather

rapidly from his experiences of schizophrenic episode. It is not known if he returned

to the use of drugs after his first hospitalization in the Army . . . . Longitudinal

history would tend to support a schizophrenic disorder . . . . Patient needs to

understand that he has been mentally ill, that he will require anti-psychotic drugs for

an indefinite period. His paranoid ideation will be difficult to change, however.

R. at 74. In an October 1975 VA regional office (RO) decision, the appellant was awarded service

connection for schizophrenia and assigned a temporary total disability rating from July 1975 to

August 1975, with a 50% disability rating effective from August 1, 1975. R. at 153.

Subsequent to his award of service connection, a December 1975 hospital summary report

and an August 1976 hospital summary report recorded a diagnosis of "no mental disorder." R. at

181-82. In a September 1976 RO decision, the appellant's disability rating was reduced to 0%,

effective as of January 1, 1977. R. at 155. Following an October 1976 hospitalization, which again

recorded "no mental disorder," the RO continued the appellant's 0% rating. R. at 157, 159, 161.

From January 1977 through March 1977, the appellant was readmitted to the Biloxi,

Mississippi, VA hospital for a period of 70 days. R. at 174-79. Four staff physicians diagnosed him

with "no mental disorder." R. at 174. The hospital summary stated:

Mr. Stallworth is soon to be 21 and is service connected for 9203 [the diagnostic

code for schizophrenia in 1977]. He was first known to us in June 1975, and was a

service patient who had a psychotic episode secondary to the use of LSD. Because

his LSD psychosis was a bit longer than usual someone in the service labeled it

schizophrenia, which in our opinion is an error in diagnosis. Dr. Dreher had the

patient on his ward for 42 days in 1975, where he showed no overt psychotic

symptoms. Diagnosis was carried forward to give the veteran the benefit of the

doubt. Four subsequent periods of hospital observation and examinations failed to

reveal evidence of a thought disorder, or any consistent reliable signs or symptoms

of psychosis, schizophrenia, affective disturbance, or neurosis. Mr. Stallworth is

intelligent, shows definite traits of an antisocial personality and has become adept at

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deceptive practices at home and while in a penal situation to manipulate his transfer

to a hospital. Whereas the undersigned physicians, psychiatrists, cannot assure

anyone that Mr. Stallworth will change his behavior. We can state he has no

evidence of a mental illness and he is fully responsible for his behavior. Further we

consider his [service connection] diagnosis to be in error and mistakenly made, when

the diagnosis should have been psychosis with drug or poison intoxication (other than

alcohol) LSD. This condition is self limiting, now resolved with no sequelae

discernable, and therefore not disabling at all. Patient is discharged regular, after a

VA mandated review panel for legally committed patients, as competent, able to

work, not in need of medication or treatment.

R. at 174.

Based on that hospitalization report, in April 1977, VA proposed to sever service connection.

R. at 170, 172. The proposal for severance noted that the recent hospitalization "shows the veteran

to have no mental disorder and that the original diagnosed schizophrenia was in error due to the

veteran's psychotic episodes secondary to the use of LSD." R. at 170. The appellant was

subsequently hospitalized in June 1977 and diagnosed with chronic undifferentiated schizophrenia.

R. at 183. In November 1977, the RO severed service connection. R. at 193. Notwithstanding the

June 1977 diagnosis, the RO determined:

[S]ymptoms and reactions of the veteran to the [June 1977] hospitalization

corresponded closely to the manipulated processes employed in the Biloxi Hospital.

On several periods of hospitalization at VA Center, Biloxi, Mississippi, veteran

showed no overt psychotic symptoms, in four periods of hospitalization there was no

evidence of a thought disorder or any consistent reliable signs or symptoms of

psychosis, schizophrenia, affective disturbance, or neurosis. The veteran is shown

to be intelligent, shows definite traits of an anti-social personality and has become

adept at deceptive practices at home and while in a penal situation to manipulate his

transfer to a hospital. The schizophrenic reaction in service was evidently associated

with drug or poison intoxication, probably LSD. This condition is self-limiting, now

resolved with no sequelae discernible, therefore not disabling at all.

Id. The RO concluded that the assignment of service connection for an acute episode of

schizophrenia was clearly and unmistakably erroneous. Id.

Within the one-year appeal period, the appellant made several requests for reevaluation of

his service-connected disability, and, in August 1978, a request for restoration of service connection.

R. at 236. He was hospitalized from November 1978 through January 1979 and was diagnosed with

chronic undifferentiated schizophrenia. R. at 202. An August 1979 neuropsychiatric examination

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report included a diagnosis of paranoid schizophrenic reaction, precipitated by and possibly

perpetuated and aggravated by illicit drug use. R. at 212. On December 4, 1979, the appellant was

notified that "while the medical evidence indicates that you are suffering from a nervous condition,

there has been no new evidence brought forth that this condition was incurred in or aggravated by

your military service. In the absence of this evidence, our decision of severing your service

connection cannot be changed." R. at 217.

The Board, in the 1981 decision being attacked for CUE, adjudicated a claim for restoration

of service connection for schizophrenia and concluded that the grant of service connection for

schizophrenia, paranoid type, by the agency of original jurisdiction was clearly and unmistakably

erroneous. R. at 235-43. In reaching this determination, the Board evaluated the evidence before

the 1977 RO and rendered the following determination:

[T]he evidence confronting the rating board in November 1977 did not show or

establish that the veteran had an acquired chronic psychiatric disorder, including a

chronic psychosis, relatable to service. The in[-]service experience was shown to

have been drug related or induced, with no chronic residual activity indicative of a

chronic acquired psychosis for more than 18 months following discharge. The

finding of no mental disorder on a number of hospitalizations by the [VA] within that

time period, in the Board's opinion, neither represent[s] a change in diagnosis nor a

finding that a chronic schizophrenic disorder was in remission. On the contrary, the

records of those hospitalizations merely further elaborate on the nature of the

psychiatric involvement then and previously experienced by the veteran. Whether

hospitalizations in June and November 1977 establish that the veteran had, at those

times, a chronic acquired psychosis, is essentially moot in view of the fact that even

if so such disorder would have first become manifested more than one year after

discharge from service. Under the circumstances, the rating action in November

1977 severing service connection for schizophrenia was supportable.

R. at 242. The Board further found that the reports from hospitalizations since 1977 did not

definitively establish that the appellant had a chronic acquired psychosis or that any psychosis had

its onset in service or became manifest within one year of service. R. at 242-43.

In a December 14, 1990, Board decision, service connection for schizophrenia was granted

based on the Board's finding that new and material evidence had been submitted to establish that a

psychosis was incurred in service. R. at 253. A subsequent Board decision refused to award an

effective date earlier than May 10, 1984, the date of the appellant's claim to reopen. R. at 255-60.

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On October 15, 2002, the appellant, through counsel, filed a Motion for Revision on the

grounds of CUE. R. at 302-10. The appellant challenged the rating decisions dated April 1977,

November 1977, and November 1979, as well as Board decisions dated January 27, 1981, December

14, 1990, and September 27, 1993, for CUE. Id. On January 8, 2004, the Board issued the decision

on appeal. R. at 1- 9. The Board determined that the 1981 Board decision did not contain CUE.

R. at 9. It noted that the April and November 1977 and November 1979 rating decisions were

subsumed by the Board's January 1981 decision. R. at 2. The Board also noted that, although the

appellant referred to the December 1990 and September 1993 Board decisions, he raised arguments

pertaining only to the 1981 Board decision. R. at 3.

On appeal, the appellant argues that there was CUE in the 1981 Board decision upholding

severance because neither the proposal for severance nor the rating decision bringing it about alleged

any facts not brought before the original adjudicator or any violation of law or regulations in the

decision making the award. Appellant's Brief (Br.) at 11. He maintains that the adjudicator did

nothing more than take issue with the findings of the medical board and the original adjudication.

Br. at 12. To the extent that the Board relied on a change in diagnosis as a basis for severance, the

appellant asserts that 38 C.F.R. § 3.105(d) should be read to require that a change in diagnosis may

be a basis for severance only when all other criteria for CUE have been met. Br. at 15-16. Thus, he

maintains that a certifying physician's opinion that a prior diagnosis was clearly erroneous is merely

another opinion added to the mix and consequently does not establish the degree of indisputability

required to establish CUE. Br. at 18-19. He also argues that the 1981 Board erred when it

discounted two schizophrenia diagnoses made subsequent to the certifying physician's opinion that

the original diagnosis was in error. Br. at 20-21. The appellant argues that if the physician's

certificate is equivocal, or, as in this case, contradicted by other evidence, it does not rise to the

required level of certainty for severance of service connection. Br. at 22. Finally, he maintains that

the 1981 Board failed to properly apply the appropriate standard for severance of service connection.

Br. at 25.

The Secretary argues that the Board's decision should be affirmed because the law in 1981

stated that a change in diagnosis may be accepted as a basis for severance action, and the Board

adequately explained that the 1977 medical evidence satisfied the requirements of 38 C.F.R.

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§ 3.105(d). Secretary's (Sec'y) Br. at 9. He also contends that the errors alleged by the appellant are

not outcome determinative, and that the appellant appears to be focusing on the severance

proceedings rather than on what the Board did in the decision on appeal. Sec'y Br. at 10-11. In

response, the appellant argues that "the Board's 2004 decision is based primarily on a review of the

record and a determination that the 1981 decision was 'plausible.' The entire thrust of the appeal to

the Board and to the Court was that 'plausible' as a basis for severance was insufficient." Reply Br.

at 2. The appellant maintains that the Board in 2004 misapprehended the law that the Board in 1981

was required to follow. Id.

II. ANALYSIS

A. Applicable Law

1. Revision Based on CUE

A request for revision on the basis of CUE is a collateral attack on a final decision by an RO

or the Board. Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000), cert. denied,

532 U.S. 973 (2001). A prior final decision must be reversed or revised where evidence establishes

CUE. See 38 U.S.C. §§ 5109A and 7111. To establish CUE in a final decision of an RO or the

Board, a claimant must show that (1) either the facts known at the time were not before the

adjudicator or that the law then in effect was incorrectly applied, and (2) had the error not been made

the outcome would have been manifestly different. Grover v. West, 12 Vet.App. 109, 112 (1999).

The claimant must provide some degree of specificity as to what the alleged error is and, unless it

is the kind of error that, if true, would be CUE on its face, "persuasive reasons must be given as to

why the result would have been manifestly different but for the alleged error." Fugo v. Brown,

6 Vet.App. 40, 44 (1993); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999)

(adopting this Court's interpretation of 38 C.F.R. § 3.105), cert. denied, 528 U.S. 967 (1999). The

alleged error must be "undebatable," not merely "a disagreement with how the facts were weighed

or evaluated." Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc); Damrel v. Brown,

6 Vet.App. 242, 246 (1994).

When the Court reviews a Board determination that there was no CUE in a prior final

decision, the Court "cannot conduct a plenary review of the merits of the original decision." Archer

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v. Principi, 3 Vet.App. 433, 437 (1992). The Court's review is limited to determining whether the

Board decision before it is "arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law," 38 U.S.C. § 7261(a)(3)(A), and whether it is supported by an adequate

statement of "reasons or bases," 38 U.S.C. § 7104(d)(1). See Joyce v. Nicholson, 19 Vet.App. 36,

43-44 (2005); Lane v. Principi, 16 Vet.App. 78, 83-84 (2002), aff'd, 339 F. 3d 1331 (Fed. Cir. 2003)

(affirming this Court's longstanding precedents regarding standard of review in CUE

determinations); Russell, supra.

2. Severance of Service Connection

"[S]ervice connection will be severed only where evidence establishes that it is clearly and

unmistakably erroneous (the burden of proof being on the government)[,]" and only after certain

procedural safeguards have been met. 38 C.F.R. § 3.105(d) (2006). At the time of the 1981 Board

decision being challenged for CUE, a change in diagnosis could have been accepted as a basis for

severance action if a proper medical authority certified that, "in the light of all accumulated evidence,

the diagnosis on which service connection was predicated is clearly erroneous." 38 C.F.R.

§ 3.105(d) (1980). Specifically, the regulation provided, in pertinent part, as follows:

[S]ervice connection will be severed only where evidence establishes that it is clearly

and unmistakably erroneous (the burden being on the Government) . . . . A change

in diagnosis may be accepted as a basis for severance action if the examining

physician or physicians or other proper medical authority certifies that, in the light

of all accumulated evidence, the diagnosis on which the service connection was

predicated is clearly erroneous. This certification must be accompanied by a

summary of the facts, findings, and reasons supporting the conclusion . . . .

Id.

Severance of service connection based on any standard less than that established by

§ 3.105(d) is erroneous as a matter of law. Graves v. Brown, 6 Vet.App. 166, 170 (1994); see also

Baughman v. Derwinski, 1 Vet.App. 563, 566 (1991). And, although the Court has equated the

standards for severance of service connection and for demonstrating CUE in a prior final VA

decision, there are critical differences that render equating those standards an oversimplification.

In this regard, we note that the Secretary's regulation providing for the severance of service

connection, in 1980 and today, is written in the present tense. See 38 C.F.R. § 3.105(d).

Consequently, the severance decision focuses–not on whether the original decision was clearly

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erroneous–but on whether the current "evidence establishes that [service connection] is clearly

erroneous." 38 C.F.R. § 3.105(d) (emphasis added). Hence, the Secretary's burden in a severance

proceeding in finding clearly erroneous the diagnosis upon which the original award of service

connection was based is not a requirement that he prove clear and unmistakable error in the original

decision in the same manner a claimant would show CUE under sections 5109A or 7111, i.e., the

Secretary is not limited to the law and the record that existed at the time of the original decision.

Section 3.105(d), through its provision that a change in diagnosis may be accepted as a basis for

severance, necessarily contemplates that the Secretary is not limited in the same manner as a

claimant attempting to demonstrate CUE in a prior final decision. Daniels, 10 Vet.App. at 480. VA

may consider medical evidence and diagnoses that postdate the original award of service connection

to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous.

Id. "If the Court were to conclude that . . . a service connection award can be terminated pursuant

to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof,

VA would be placed in the impossible situation of being forever bound to a prior determination

regardless of . . . later developments in the factual record." Id. (quoting Venturella v. Gober,

10 Vet.App. 340, 343 (1997) (Steinberg, J., concurring)).

B. Application of Law to Facts

On appeal, the appellant argues, among other things, that the 2004 Board erred by applying

the wrong standard of review in determining whether the 1981 Board decision contained CUE. As

explained below, because the Board in 2004 was unclear regarding the standard of review that it was

applying, the Court's ability to review the Board decision on appeal is impaired and a reasons-or-

bases remand is warranted.

Admittedly, this case involves the application of a complex legal framework with multiple

levels, and differing standards, of review. In 1981, in order to properly sever service connection, VA

had the burden of demonstrating that the evidence then before it established that the diagnosis upon

which the appellant's prior award of service connection for schizophrenia was based was clearly and

unmistakably erroneous. See 38 C.F.R. § 3.105(d). No appeal of the 1981 Board decision being

available, that decision was final. Consequently, in an attempt to overcome that decision, the

appellant submitted a motion to revise the 1981 Board decision on the basis that the 1981 decision

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was the product of CUE. In ruling on the motion to revise the 1981 Board decision on the basis of

CUE, the Board in 2004 was required to review the 1981 Board decision to determine whether the

appellant had demonstrated that (1) either the facts known at the time were not before the adjudicator

or that the law in effect in 1981 was incorrectly applied, and that (2) had the error not been made the

outcome would have been manifestly different. Grover, 12 Vet.App. at 112. We, in turn, are now

reviewing the 2004 Board decision only to determine whether it 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." See 38 U.S.C. §§ 7261(a)(3)(A), 7104(d)(1).

Here, the problem lies entirely in the statement of reasons or bases the Board rendered in

2004. In that regard, exactly what standard the Board applied in 2004 in reviewing the 1981 Board

decision is not entirely clear. In its finding that the 1981 Board decision did not contain CUE, the

Board stated that "[w]hile there may be a different view of the evidence more favorable to the

veteran, there is a plausible basis in the evidentiary record for the Board's January 1981 decision and

it is thus not absolutely clear or undebatable that there would have been a different outcome." R. at

7 (emphasis added). After further discussion, the 2004 Board reiterated that "there [was] a plausible

basis for the Board's January 1981 decision." R. at 8 (emphasis added). The Board then applied a

different standard of review, concluding: "The veteran has not alleged or demonstrated that there was

error in the January 1981 Board decision of the kind which reasonable minds could not differ, and

that the results would have been manifestly different but for the error. Accordingly, the January

1981 Board decision does not contain [CUE]." R. at 8-9 (citations omitted). Because we are not

satisfied that the Board applied the correct standard of review in determining whether the 1981

Board decision contained CUE, we will vacate the decision and remand the matter to the Board for

further proceedings consistent with this decision.

Our dissenting colleague has focused on the fact that the Board in 2004 used the words

"[w]hile there may be a different view of the evidence more favorable to the veteran" as providing

a finding of fact that necessitates reversal in the context of a CUE claim. However, on its face, that

allowance of a possibility that the facts could be viewed differently is not equivalent to a finding of

fact by the Board in 2004 that there was a different view of the evidence more favorable to the

veteran. Further, and more importantly, the very nature of a procedure to sever service connection

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presupposes that there were sufficient facts to initially confer service connection and that the facts

upon review of the original evidence, and other evidence gathered following the original decision,

later indicate that the original decision was clearly and unmistakably erroneous. See supra at 8-9.

The mere fact that a Board conducting a CUE analysis utters the possibility that there could be

another view of the facts, does not, as our colleague argues, ipso facto render the prior Board

decision clearly erroneous and subject to reversal, thus restoring service connection. The Board did

not specifically state that there was an alternative view of the evidence in 1981; instead, it merely

raised the possibility that there may have been another view of the evidence. Rather, such

ambiguous language requires that the Board conducting the CUE review render a decision that

reflects that it understands and applies the correct analysis in the first instance.

On remand, the Board must realize that the "plausible basis" standard is irrelevant in

determining whether the Board's 1981 finding was the product of CUE. R. at 7. The proper standard

for the Board to apply is the following three-part test to determine whether the 1981 Board decision

is the product of CUE: (1) whether "[e]ither the correct facts, as they were known at the time, were

not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed

or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied";

(2) whether the existence of an error is "undebatable"; and (3) whether the error is of the sort "which,

had it not been made, would have manifestly changed the outcome at the time it was made."

Damrel, 6 Vet.App. at 245 (quoting Russell, 3 Vet.App. at 313-14). In making these determinations,

the decision must be based on the record and law that existed at the time of the prior adjudication

in question. This evidentiary standard has been analyzed in a number of the Court's opinions. "Most

of these address the appeals of claimants seeking a finding of CUE in a past denial of benefits.

However, the Court has held that the standard is equally applicable to VA where the issue is

severance of service connection based on CUE." Wilson v. West, 11 Vet.App. 383, 386 (1998). On

remand, the Board must determine whether the 1981 Board decision severing the prior grant of

service connection was the product of CUE, and that determination requires an analysis of whether

VA properly applied the stringent regulatory procedure for severance established by § 3.105(d). That

issue thus will be remanded to the Board for readjudication.

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III. CONCLUSION

Upon consideration of the foregoing analysis, the record on appeal, and the parties' briefs,

the January 8, 2004, Board decision is VACATED. The matter is REMANDED to the Board for

proceedings consistent with this opinion.

LANCE: Judge, dissenting: While I agree with the black-letter law holding of the majority,

I must respectfully dissent from its refusal to apply that holding to the facts of this case. The

majority is correct that the Secretary's evidentiary burden in a severance adjudication is the same as

that on an appellant trying to demonstrate CUE in a prior decision. The evidence must be so

convincing that "reasonable minds could not differ." 38 C.F.R. § 20.1403(a) (2006). See, e.g., Fugo

v. Brown, 6 Vet.App. 40, 43 (1993). In this case, the Board admitted that "there may be a different

view of the evidence more favorable to the veteran." R. at 7. I do not see a way to read this

statement without reaching the conclusion that the Board found that reasonable minds could differ

as to how to interpret the evidence of record at the time of the Board's January 1981 decision. This

conclusion is dispositive and the Board cannot deny the appellant's CUE motion on remand without

vacating this finding. I see no reason why the Secretary should be awarded a gratuitous opportunity

to revise his factual finding so it will conform with an outcome unfavorable to the veteran. Cf.

38 U.S.C. § 7252 (the Secretary may not seek review of Board decisions).

The majority argues "that allowance of a possibility that the facts could be viewed differently

is not equivalent to a finding of fact by the Board in 2004 that there was a different view of the

evidence more favorable to the veteran." Ante at 10. However, that assertion has no basis in the

governing standard, which is "reasonable minds could not differ." The Board's comment reveals

with certainty that it reviewed and considered the evidence of record at the time of the severance

decision. Having done so, it is impossible to see how the Board on remand could conclude that

"reasonable minds could not differ" about how to view the evidence after admitting that there may

be a view favorable to the appellant. Logically, if the evidence was truly clear and undebatable, then

the Board would have come to the conclusion that there was no possibility that the evidence could

be viewed otherwise and would have made that finding instead.

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The interpretation embraced by the majority results in the Board discussing the evidence in

terms that are unrelated to any standard of proof known to veterans law. This is particularly curious

given that the remainder of the sentence from the Board decision is phrased in terms of another well

known standard: "There is a plausible basis in the evidentiary record for the Board's January 1981

decision." See, e.g., Karnas v. Derwinski, 1 Vet.App. 308, 311 (1991) (discussing the plausible-basis

standard). There is simply no justification for creating a new standard where there may be

alternative views of the evidence even though one of those views is undebatable. When an

adjudicative body discusses the weight of the evidence before it, it is irrational to assume it did so

in meaningless terms. If the Board's decision was framed solely in terms of a standard that was

insufficient to resolve the matter, then a remand would be appropriate. For example, if the Board's

comment on the evidence had been limited to the statement that "there is a plausible basis in the

evidentiary record for the Board's January 1981 decision," then I could agree that a remand was

appropriate as such a finding would simply be irrelevant to the governing standard. However, the

majority goes beyond this to hold that the statement that "there may be a different view of the

evidence more favorable to the veteran" is mere gibberish that can be edited out of the Board's

decision.

To the extent that the majority comments that "the very nature of a procedure to sever service

connection presupposes that there were sufficient facts to initially confer service connection," ante

at 10, this is a red herring that tries to alter the nature of the Board's admission. The Board did not

say that there may be some evidence supporting service connection. (This, of course, will always

be true in a severance proceeding.) The Board said there may be a view of the whole body of

evidence favorable to the veteran. This evaluation of the whole evidentiary picture is not for the

Court to second guess, ignore, or interpret away. Regardless of how flawed or unsupported by the

record, once the Board has made a factual finding that favors the veteran, the Court must accept that

finding even if the record is devoid of any evidence to support it. See Sutton v. Nicholson,

20 Vet.App. 419, 422 n.1 (2006) (accepting the Board's finding that the appellant did not receive an

RO decision despite the lack of any analysis or evidence rebutting the presumption of regularity).

The unjustified remand in this case not only "perpetuates the hamster-wheel reputation of

veterans law," Coburn v. Nicholson, 19 Vet.App. 427, 434 (2006) (Lance, J., dissenting), but also

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risks depriving the appellant of the benefits that he should be awarded based on the factual finding

already made by the Board. Even if the Board reaffirms its finding on remand and grants the

appellant's CUE motion, the appellant will have been denied his rightful benefits for many additional

months, if not years, without any remedy for this delay. See Matthews v. Nicholson, 456 F.3d 1377,

1380 (Fed. Cir. 2006) (holding that no interest is paid on benefits awarded based on a finding of

CUE). Accordingly, I would reverse the decision of the Board on appeal and remand the matter for

an award of benefits based on the CUE in the 1981 Board decision.

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