Pat A. Hatfield v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 21-5125

PAT A. HATFIELD, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued December 13, 2022 Decided March 28, 2023)

Adam R. Luck, of Dallas, Texas, for the appellant.

Mark J. Hamel, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief

Counsel; and James B. Cowden, Deputy Chief Counsel, all of Washington, D.C., were on the brief

for the appellee.

Before ALLEN, MEREDITH, and FALVEY, Judges.

ALLEN, Judge: Appellant Pat A. Hatfield is the surviving spouse of veteran Archie A.

Hatfield, who served the Nation honorably in the United States Army during World War II, from

March 1944 to May 1945. 1 The veteran died in January 1979, and Mrs. Hatfield sought VA

compensation for his death under 38 U.S.C. § 351, now codified as section 1151. She has asserted

that the medical treatment VA provided to the veteran was deficient, specifically because VA

failed to obtain his informed consent concerning cancer treatment.2 Appellant was finally awarded

benefits in March 2021, following our March 2021 precedential decision on her earlier appeal in

Hatfield I. In Hatfield I, we held that the reasonable person exception to informed consent–which

allows defects in informed consent that are minor and immaterial if a reasonable person in similar

circumstances would have proceeded with treatment even if informed of a foreseeable risk–does

not apply when no consent is obtained at all.3

1

Record (R.) at 173. The record of proceedings in this matter does not include the veteran's DD Form 214, but that

document was before the Court in the docket for a prior Court decision involving Mrs. Hatfield. See Hatfield v.

McDonough (Hatfield I), 33 Vet.App. 327, 328 (2021).

2

See R. at 394.

3

Hatfield I, 33 Vet.App. at 329.

This appeal, which is timely and, subject to the caveats we discuss below, over which the

Court has jurisdiction,4 concerns whether appellant could be entitled to a much earlier effective

date for her award of compensation under section 1151. Appellant challenges a June 4, 2021,

decision of the Board of Veterans' Appeals that denied a motion to revise, on the basis of clear and

unmistakable error (CUE), an October 29, 1980, Board decision that, in turn, had denied

entitlement to compensation under the predecessor to section 1151, 38 U.S.C. § 351. As we will

discuss in more detail below, appellant argues that the 1980 Board decision contains CUE because

it did not address whether VA's failure to obtain the veteran's informed consent before his radiation

treatment for cancer constituted deficient medical care under section 351.5

This matter was referred to a panel of the Court principally to consider whether, at the time

of the October 1980 Board decision, a failure to obtain a patient's informed consent provided a

basis upon which to award compensation under section 351 such that it was CUE for the 1980

Board not to consider that question. We hold that a failure to obtain a patient's informed consent

was not undebatably a basis upon which to award compensation under section 351 in 1980.

Appellant has not shown that the only reasonable interpretation of section 351 in 1980 was that

benefits were warranted based on a failure to obtain a patient's informed consent.6 In a nutshell,

the language of the statute then–as today–does not contain any reference to informed consent, and

the legislative history of the statute reinforces the conclusion that the failure to obtain a patient's

informed consent did not support compensation under the provision. Moreover, the regulation

implementing section 351 underscores the point that a lack of informed consent did not

undebatably provide a basis for compensation. Indeed, the concept of informed consent forming a

basis upon which compensation was warranted does not appear in relevant regulations until the

mid-1990s. Finally, we are not persuaded by appellant's argument that the common law of medical

malpractice supports a finding that the only reasonable interpretation of section 351 in 1980 was

that the statute provided for an award of compensation where VA did not obtain a patient's

informed consent. The bottom line is that appellant fails to show that the Board's June 2021

4

See 38 U.S.C. §§ 7252(a), 7266(a).

5

Appellant's Brief (Br.) at 7.

6

See Berger v. Brown, 10 Vet.App. 166, 170 (1997) ("If the RO's interpretation of the plain meaning of the law was

clearly and unmistakably erroneous . . . then there may be a basis for a CUE [motion]. On the other hand, if it was a

plausible interpretation . . . then there is no basis for such a claim."); see also Perciavalle v. McDonough, 35 Vet.App.

11, 37 (2021) (en banc).

2

decision finding no CUE in the October 1980 Board decision was arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law. Therefore, we will affirm.

I. FACTS AND PROCEDURAL HISTORY

In Hatfield I we described many of the facts relevant to this appeal.7 Here, we provide only

the context necessary to understand the resolution of the matter before the Court today.

In 1978, several decades after his World War II service, the veteran was diagnosed with

stage 2B Hodgkin's disease at a VA facility. 8 Following that diagnosis, the veteran received

radiation therapy at a VA medical center. 9 Sadly, Mr. Hatfield died in January 1979 from

pulmonary complications associated with the radiation therapy he received as treatment for his

condition.10 That same month, appellant, Mrs. Hatfield, sought VA dependency and indemnity

compensation (DIC) benefits for the veteran's cause of death.11 In a February 1979 decision, the

regional office (RO) denied service connection for the cause of the veteran's death, finding "no

evidence the service-connected conditions contributed to cause of death, interfered with proper

treatment, or in any way hastened death."12

Appellant perfected an appeal of the RO decision to the Board, leading to the October 1980

Board decision that appellant contends contains CUE.13 In that decision, and as relevant here, the

Board rejected appellant's argument that the VA facility administered an excessively high dose of

radiation to the veteran.14 The Board concluded that the VA facility acted appropriately in treating

the veteran, and that while his reaction to radiation was unusual, "we are unable to say that such a

reaction was not a contemplated possible result."15 Therefore, the Board denied entitlement to

7

See Hatfield I, 33 Vet.App. at 329-31.

8

R. at 1794-96.

9

Id.

10

R. at 1816.

11

R. at 1808-11.

12

R. at 1786.

13

R. at 1657-72.

14

R. at 1658.

15

R. at 1670.

3

compensation under section 351 for the cause of the veteran's death. It is this 42-year-old decision

that is the subject of the appeal before the Court today.

There was no right to seek judicial review of a Board decision in 1980, so the October 1980

decision was final. Nevertheless, over the years, appellant used several procedural devices to

continue to assert her entitlement to VA benefits under section 1151, the successor statute to

section 351, culminating in our March 2021 Hatfield I decision.16 In Hatfield I, the Court held that

a complete failure to seek a patient's informed consent for a medical procedure could not be

excused as a "minor and immaterial deviation" from the informed-consent requirement. 17

Therefore, we held that the Court's decision in McNair adopting this exception did not apply when

there was no attempt to obtain informed consent at all.18 The Court reversed the Board's denial of

DIC benefits and remanded appellant's claim for the Board to award DIC benefits and assign an

effective date.19 In Hatfield I, the Court discussed the October 1980 Board decision, noting that

the 1980 Board addressed the issue of foreseeability and found that pulmonary fibrosis was not

unforeseen.20 The Court held that because the 1980 Board addressed the issue, the claim did not

remain pending as appellant had argued. In a footnote, the Court noted that "nothing precludes

appellant from filing a [CUE] motion to revise the 1980 Board decision."21

The record reflects, however, that in September 2020, before the Court issued its decision

in Hatfield I, appellant, through her current counsel, had filed just such a CUE motion concerning

the 1980 Board decision.22 She described her CUE allegation as follows:

[T]he Board's decision dated October 29, 1980, which denied entitlement to

compensation under 38 U.S.C. § 351 (later codified as 38 U.S.C. § 1151), was

based on an incorrect application of the provisions of 38 U.S.C. § 351, 38 U.S.C.

§ 4131 (1976)[,] and 38 C.F.R. § 17.34 (1980), which rendered it void ab initio.[23]

16

R. at 173-90. The Background section of Hatfield I contains a detailed retelling of the full procedural history of

Mrs. Hatfield's journey to DIC benefits. See Hatfield I, 33 Vet.App. at 329-31.

17

33 Vet.App. at 329, 337-38 (discussing McNair v. Shinseki, 25 Vet.App. 98, 107 (2011)).

18

Hatfield I, 33 Vet.App. at 338.

19

Id. at 341.

20

Id. at 340-41.

21

Id. at 341 n.95.

22

R. at 195-201.

23

R. at 195-96.

4

She specifically argued that there was CUE in the 1980 decision because the Board did not address

whether VA medical professionals had obtained the veteran's informed consent before he received

radiation treatment for his cancer.24 In that regard, she noted that there was no evidence that VA

had sought or obtained the veteran's informed consent at the time of the 1980 Board decision, so

there was a factual basis to support her claim. She argued that 38 U.S.C. § 4131 and 38 C.F.R.

§ 17.34, which required VA medical professionals to obtain a patient's informed consent for

medical care, should have been considered in conjunction with section 351's compensation benefit.

She contended that if the Board had considered these three provisions, VA would have granted her

DIC benefits at that time under the undisputed facts.

In the June 2021 decision on appeal, the Board denied appellant's CUE motion, concluding

that nothing in the law in 1980 provided that a failure to obtain a patient's informed consent was a

basis for compensation under section 351.25 In that regard, the Board found that although section

4131 and § 17.34 mandated that VA health care providers obtain a patient's informed consent,

appellant failed to demonstrate that those provisions had any impact on the provision of

compensation under section 351.26 Additionally, the Board highlighted that section 351 did not

contain "any reference to the need for informed consent" at the time of the 1980 Board decision.27

Instead, the Board noted that the statute and regulation had "substantially changed" since 1980,

and the Board determined that a failure to obtain informed consent only became a ground upon

which to award compensation under the successor to section 351 (section 1151) when VA adopted

the current statute's implementing regulation, 38 C.F.R. § 3.361, well after 1980.28 In 1980, by

contrast, section 351's implementing regulation, 38 C.F.R. § 3.358, did not mention informed

consent as a basis for compensation or refer to section 4131 or § 17.34, which dealt with informed

consent as a matter of medical practice. 29 In sum, the Board concluded that the law in 1980

"regarding compensation for additional disability or death due to VA medical care made no

24

R. at 198.

25

R. at 6.

26

R. at 9.

27

R. at 10.

28

Id.

29

R. at 11.

5

reference to [section 4131 or § 17.34 governing informed consent]" and that those provisions

"contain no authorization for the payment of compensation for violations of the informed consent

practices they reference."30 Therefore, the Board found that the law as it stood at the time of the

1980 Board decision did not require consideration of a failure to obtain a patient's informed consent

in the context of a claim for compensation under section 351, and that the Board's failure in 1980

to consider the matter did not constitute CUE.31

II. PARTIES' ARGUMENTS

Appellant argues that the law as it was understood at the time of the 1980 Board decision

equated a lack of informed consent with negligence and, therefore, the failure to obtain such

informed consent provided a basis for an award of compensation under section 351.32 Because of

this, appellant maintains that the 1980 Board's failure to consider the lack of informed consent for

the veteran's radiation treatment constitutes CUE. 33 She contends that the June 2021 Board

conceded that section 4131 and § 17.34, governing informed consent, were in effect in 1980.34 She

also asserts that the 2021 Board's sole reason for denying her CUE motion was that the law

"'substantially changed'" following the 1980 Board decision,35 despite the fact that section 1151

today reads nearly the same as section 351 did in 1980.36 She argues that the Board's reliance on a

change in regulatory language is of no moment because the current implementing regulation,

§ 3.361, provides a lack of informed consent as an example of negligence and not as a requirement

for section 1151 compensation.37 Appellant contends that, because negligence formed a basis for

compensation under section 351 in 1980, it necessarily included a failure to obtain informed

consent as a basis for such compensation. And she points to the common law more generally at

30

Id.

31

R. at 10-11.

32

Appellant's Br. at 12.

33

Id.

34

Id. at 6.

35

Id. at 7 (quoting R. at 10).

36

Compare 38 U.S.C. § 351 (1976 & Supp. III 1980), with 38 U.S.C. § 1151 (2018 & Supp. III 2022).

37

Appellant's Br. at 8-9.

6

the time of the 1980 Board decision to demonstrate that informed consent was a recognized form

of negligence.38

The Secretary responds that the 2021 Board decision was not arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law and that appellant's arguments do not meet

the stringent standard governing CUE motions.39 The Secretary argues that it was not arbitrary or

capricious for the Board to rely on the changes made to section 1151's implementing regulation

after 1980 to illustrate that the law at the time of the 1980 Board decision did not include a failure

to obtain a patient's informed consent as a basis for compensation.40 This is so, the Secretary

argues, because the informed-consent language was explicitly added to the regulatory language

long after the 1980 Board decision.41 The Secretary asserts that it was this later-adopted regulatory

language that made a lack of informed consent, as provided for VA purposes under section 4131

and § 17.34, a basis for compensation under section 1151.42 Finally, the Secretary contends that

appellant's reliance on the role of informed consent in establishing negligence in the common law

more generally misses the mark because the correct inquiry to establish CUE is whether that

concept was embodied in VA's statutes and regulations at the time of the 1980 Board decision.43

III. ANALYSIS

Here is a roadmap to our resolution of this appeal. We begin by discussing the law

governing CUE that will shape our analysis. We also provide background on section 1151

compensation to set the stage for our consideration of the Board's resolution of appellant's CUE

motion. Then, we explain the theories of CUE over which we conclude we have jurisdiction and

delineate certain theories of CUE that, if appellant were pressing them, we would not have

jurisdiction to address. We then turn to section 351 as it existed at the time of the 1980 Board

decision, including what its implementing regulation then and in subsequent iterations tells us

about the meaning of the statute. Along the way, we also consider the relationship between section

38

Id. at 10-11.

39

Secretary's Br. at 14.

40

Id. at 11-13.

41

Id.

42

Id.

43

Id. at 13-14.

7

351 and section 4131 and § 17.34, the statute and regulation requiring VA to obtain a patient's

informed consent as a matter of medical practice in 1980, and whether those provisions support

the relief appellant seeks. We ultimately conclude that the Board's conclusion that the October

1980 Board decision did not contain CUE is not arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law, leading us to affirm the June 2021 decision on appeal.

A. Legal Landscape: CUE and Section 351/1151 Compensation

The finality of an unappealed Board decision may be overcome if the decision contains

CUE.44 Here, appellant does not dispute that the 1980 Board decision was final and, therefore, that

one path to revisit that decision is through a showing of CUE.45

CUE "is a very specific and rare kind of error . . . that when called to the attention of later

reviewers compels the conclusion, to which reasonable minds could not differ, that the result

would have been manifestly different but for the error."46 To establish CUE, a claimant must show

that (1) either the facts known at the time were not before the adjudicator or the law then in effect

was incorrectly applied, (2) an error occurred based on the record and the law that existed at the

time the decision was made, and (3) had the error not been made, the outcome would have been

manifestly different.47 When reviewing a Board conclusion that there was no CUE in a final VA

decision, "the Court cannot conduct a plenary review of the merits of the original decision."48

Rather, the Court's overall review of the Board finding no CUE in a prior, final decision is limited

to determining whether the Board's finding was "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law."49

Here, appellant's CUE allegations involve the application of the law in effect at the time of

the 1980 Board decision governing compensation based on disability caused by deficient VA

medical care. By way of background, section 1151 now, as section 351 did in 1980, provides

44

38 U.S.C. § 7111(a); see DiCarlo v. Nicholson, 20 Vet.App. 52, 56 (2006), aff'd sub nom. DiCarlo v. Peake,

280 F. App'x 988 (Fed. Cir. 2008).

45

As the Court noted in DiCarlo, other exceptions to finality include the Chairman of the Board granting

reconsideration of a Board decision or a claimant reopening a previously denied claim. DiCarlo, 20 Vet.App. at 56.

46

38 C.F.R. § 20.1403(a) (2022); see George v. McDonough, 142 S. Ct. 1953, 1959-60 (2022).

47

Simmons v. Wilkie, 30 Vet.App. 267, 274 (2018), aff'd, 964 F.3d 1381 (Fed. Cir. 2020); Damrel v. Brown,

6 Vet.App. 242, 245 (1994); Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc).

48

Simmons, 30 Vet.App. at 274 (internal quotation marks omitted); see Archer v. Principi, 3 Vet.App. 433, 437

(1992).

49

38 U.S.C. § 7261(a)(3)(A); see Simmons, 30 Vet.App. at 274-75.

8

compensation for additional disability or death caused by VA hospitalization, medical or surgical

treatment, or rehabilitation services as if that disability were service connected. In 1980, section

351 read as follows:

Where any veteran shall have suffered an injury, or an aggravation of an injury,

as the result of hospitalization, medical or surgical treatment, or the pursuit of

a course of vocational rehabilitation under chapter 31 of this title, awarded

under any of the laws administered by the Veterans' Administration, or as a

result of having submitted to an examination under any such law, and not the

result of such veteran's own willful misconduct, and such injury or aggravation

results in additional disability to or the death of such veteran, disability or death

compensation under this chapter and dependency and indemnity compensation

under chapter 13 of this title shall be awarded in the same manner as if such

disability, aggravation, or death were service-connected.[50]

As we will discuss in more detail below, the language of section 351 in 1980 remained the

state of play until the Supreme Court's 1994 decision in Brown v. Gardner, which held that because

the statute did not contain a fault requirement, VA's implementing regulation that included such a

requirement was invalid.51 In response to that decision, Congress amended the statute to add the

fault requirement that the Supreme Court found was missing. Therefore, today the successor to

section 351, section 1151, requires an additional disability that is not the result of willful

misconduct and caused by hospital, medical or surgical treatment furnished by VA or at a VA

facility, just as section 351 did in 1980.52 But section 1151 also includes one more element: the

"proximate cause" of the disability must either be "carelessness, negligence, lack of proper skill,

error in judgment, or similar instance of fault on the part" of VA or "an event not reasonably

foreseeable."53 The key point is that section 351 in 1980 required an additional disability that was

not the result of willful misconduct and caused by treatment at a VA facility, just as section 1151

does today.54

50

38 U.S.C. § 351 (1976 & Supp. III 1980).

51

513 U.S. 115, 116 (1994) (Gardner II).

52

Compare 38 U.S.C. § 1151(a) (2018 & Supp. III 2022), with 38 U.S.C. § 351(a) (1976 & Supp. III 1980).

53

38 U.S.C. § 1151(a)(1)(A)-(B).

54

38 U.S.C. § 351 (1976).

9

Having set out these principles, we are almost ready to address appellant's arguments about

the Board's decision on appeal on the merits. But before we can do so, we must spend a moment

on our jurisdiction. We turn to that matter next.

B. The Court's Jurisdiction over Appellant's CUE Motion

The Court has made clear that "each 'specific' assertion of CUE constitutes a [matter] that

must be the subject of a decision by the [Board] before [this] Court can exercise jurisdiction over

it."55 When the Court reviews a Board decision regarding CUE, "[t]he necessary jurisdictional

'hook' for this Court to act is a decision of the [Board] on the specific issue of [CUE]."56 Therefore,

we begin our analysis by establishing what CUE allegations we have the jurisdiction to address.

As described above, in her September 2020 CUE motion, appellant specifically argued that

the 1980 Board decision contained CUE because it failed to discuss whether VA obtained the

veteran's informed consent before he underwent radiation treatment in violation of section 351,

read in conjunction with section 4131 and § 17.34.57 We agree with the parties that whether the

1980 Board decision committed CUE by failing to address informed consent in the context of these

three provisions is properly before us.58

Unfortunately, things are not quite so black and white in terms of our jurisdiction because

appellant has made arguments about sources of law that go beyond the two statutes and one

regulation she cited in her CUE motion. In particular, appellant makes arguments concerning

38 C.F.R. § 3.358, section 351's implementing regulation in 1980, and the common law. The

difficulty arises because we have held that "an appellant can flesh out and rephrase [her] argument"

when appealing an adverse CUE determination and that the "some degree of specificity"

requirement "is broad enough to allow an appellant to rephrase and provide additional argument

and support for the same basic CUE argument." 59 But an entirely different theory of CUE is

prohibited.60 So, we must consider how appellant uses § 3.358 and the common law on appeal.

55

George v. Wilkie, 32 Vet.App. 318, 323 (2020) (quoting Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002)).

56

Russell, 3 Vet.App. at 315 (cleaned up).

57

R. at 198.

58

See Appellant's Supplemental (Supp.) Br. at 1-2; Secretary's Supp. Br. at 1-2.

59

Jordan v. Principi, 17 Vet.App. 261, 271 (2003) (citations and emphasis omitted).

60

Andre, 301 F.3d at 1361.

10

She may not make a new allegation of CUE based on these sources of law, but she may "provide

additional argument and support" for the CUE theories she specifically presented to the Board.61

We acknowledge that this is a slippery question, but it is one that we must address.

There is no doubt that appellant did not present a theory to the Board below that the 1980

Board decision contains CUE based on a misapplication (or nonapplication) of § 3.358. There is

no mention of this regulation in her CUE motion.62 So, we lack jurisdiction to address such a theory

on appeal.63 But that does not mean that any reference to § 3.358 is off-limits. The Board in the

decision on appeal relied on changes to the statute's implementing regulation (§ 3.358 in 1980 and

§ 3.361 today) to explain when a failure to obtain informed consent first warranted compensation

under section 351 and its successor statute, section 1151.64 Because we are tasked with reviewing

the 2021 Board's analysis, we have jurisdiction to consider § 3.358 when assessing whether the

2021 Board's conclusion that the 1980 Board decision did not contain CUE was arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law on the theories before

the Board.

However, in her briefing and at oral argument, appellant does more than address the 2021

Board's analysis of § 3.358 in support of its decision on her CUE motion. Instead, she raises a

more specific argument regarding § 3.358(c)(3) and whether it provides a "nonexhaustive list" of

what constitutes proximate causation for VA compensation,65 apparently contending that the 1980

Board erred in its application of that provision.66 As appellant conceded in her supplemental brief,

this argument was not a part of her September 2020 CUE motion before the Board.67 Because

appellant did not raise the specific allegation of CUE based on the meaning of § 3.358(c)(3) in her

CUE motion before the Board, we do not have jurisdiction to address it. Therefore, we will dismiss

the appeal to the extent it is based on this allegation of CUE.

61

Jordan, 17 Vet.App. at 271.

62

R. at 195-201.

63

See Johnston v. Nicholson, 421 F.3d 1285, 1288 (Fed. Cir. 2005) ("The requirement of specificity . . . is properly

read to require that the veteran, represented by counsel, identify before the Board the particular provision in the

regulations on which he [or she] relies.").

64

R. at 10-11.

65

Oral Argument (O.A.) at 28:28-31:00, Hatfield v. McDonough, U.S. Vet. App. No. 21-5125 (oral argument held

Dec. 13, 2022), http://www.uscourts.cavc.gov/documents/Hatfield2.MP3.

66

See id.; see also Appellant's Br. at 8-9.

67

Appellant's Supp. Br. at 5; see R. at 195-96 (CUE motion).

11

Finally, we consider appellant's arguments on appeal concerning the common law. This

argument does not appear in her September 2020 CUE motion and the Board did not address it.

So, insofar as appellant may be arguing that it was CUE for the 1980 Board not to consider the

state of the common law, we lack jurisdiction to address this theory of CUE and will dismiss the

appeal to the extent appellant advances that theory. However, and as we discuss further below, we

understand appellant to principally be arguing that the state of the common law in 1980 informs

an understanding of how section 351 was interpreted in 1980. We will consider the argument in

this limited way as permissible additional support of the CUE argument appellant advanced before

the Board.

C. The Meaning of Section 351 in 1980

Having established the Court's jurisdiction, we turn now to the law as it existed at the time

of the 1980 Board decision, starting with section 351. The Board's conclusion that there was no

CUE in the 1980 decision under section 351 is not arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.

We begin our discussion by considering the language of section 351 in 1980, as quoted

above. As the parties agree, that statute did not at that time contain, nor has it ever in any

incarnation contained, language about the lack of informed consent forming a basis for

compensation.68 But the parties also agree that, presently, the failure to obtain a patient's informed

consent can support the award of compensation under section 1151, the successor to section 351.69

Where the parties diverge is on the question of how long the failure to obtain a patient's informed

consent has supported an award of disability-like compensation. Appellant essentially argues that

the law has always provided for compensation based on a failure to obtain informed consent

concerning the provision of VA medical care and certainly did so as of October 1980. 70 In

connection with this principal statutory argument, appellant contends that because section 4131

and § 17.34, both of which provided that VA medical professionals were required to seek a

68

See Appellant's Br. at 7; Secretary's Br. at 13.

69

See Secretary's Br. at 10 (citing Hatfield I, 33 Vet.App. at 334).

70

Appellant is clear that her argument is not based on any retroactive application of the law but rather that the law at

the time of the October 1980 Board decision allowed compensation under then-section 351 based on a failure to obtain

a patient's informed consent. Appellant's Supp. Br. at 1-6. Thus, she contends that her position is consistent with recent

caselaw, including the Supreme Court's decision in George, 142 S. Ct. 1953, and our decision in Perciavalle,

35 Vet.App. 11. Appellant's Supp. Br. at 8-12.

12

patient's informed consent before treatment, were in effect in 1980, informed consent also provided

a basis for compensation under section 351 at the time of the 1980 Board decision. For his part,

the Secretary tracks the Board's reasoning, focusing principally on developments after 1980 in the

implementing regulations and caselaw that demonstrate that the law changed concerning whether

the failure to obtain a patient's informed consent qualified under the proximate causation

requirement under the successor to section 351, section 1151.

We think the Secretary has the better of the argument and that the Board did not err when

it concluded there was no CUE in the 1980 Board decision. Although statutory interpretation

always begins with the plain language of the statute,71 as noted above the text of section 351 is

silent on the issue of informed consent. At the risk of stating the obvious, the language of the

statute certainly does not include the term "informed consent." But the reality is that we find

nothing in the plain language of the statute that could be construed (let alone undebatably so) as

encompassing informed consent. In addition, section 351 did not contain any reference to

negligence or discuss any possible reasons that VA treatment may lead to injury. We simply find

no words in the plain language of section 351 that even remotely point to VA's failure to obtain

informed consent being a basis for the award of compensation.

Given section 351's silence on the failure to obtain informed consent as the basis for an

award of compensation, in the balance of this section we look to the legislative history of the statute

and what that history tells us about the place of informed consent in the section 351 compensation

scheme in 1980.72 Along the way, we also address appellant's arguments about the statutory and

regulatory requirements in place in 1980 that required VA to obtain a patient's informed consent

as a matter of medical practice. Then, in the following section, we consider the changes in the

regulations implementing the statute to determine when informed consent first entered the picture

in terms of compensation under section 351 or section 1151.

71

See McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008); see also Williams v. Taylor, 529 U.S. 420, 431 (2000).

72

See, e.g., Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 18 (1979) (holding that Congress's "intent may

appear implicitly in the language or structure of the statute, or in the circumstances of its enactment"); DiGiovanni v.

Traylor Bros., Inc., 75 F.3d 748, 755 (1st Cir. 1996) (stating that, "[n]ormally, the task of interpretation must begin

with the statutory language," but where Congress did not define duties of care, the court "turn[s] to relevant legislative

history for guidance"); Allison v. Liberty Sav., 695 F.2d 1086, 1089 (7th Cir. 1982) ("Legislative history can be a key

to interpreting congressional intent.").

13

As we noted above, the concept underlying section 351 in 1980 and section 1151 today is

to provide compensation under certain circumstances to those injured as a result of VA medical

treatment as if those injuries were service connected. This means of receiving VA compensation

first appeared in the 1924 World War Veterans' Act.73 In 1933, Congress repealed the World War

Veterans' Act. However, Congress reinstated the statute in 1934, including the provision for

disability-like compensation based on injuries resulting from VA medical care.74 This concept

became codified at 38 U.S.C. § 351 in 1958.75

Nothing in the legislative history suggests that Congress thought that a failure to obtain a

patient's informed consent before treatment or other care was a basis upon which to award

compensation under what became section 351 in 1958. Indeed, the only time that "consent" is

mentioned in the legislative history from 1924 to 1958 was a passing reference in a hearing in

1924. Specifically, at a hearing on the World War Veterans' Act, General Frank T. Hines, then-

director of the United States Veterans' Bureau,76 testified about compensation for those injured

during VA treatment. In his testimony, quoted in Gardner I, he stated, "'[i]n the hospital, at the

patient's consent, he may undergo a certain surgical operation, with the hope, on the best advice

available, that it will overcome some disability, but instead of doing that it goes in the other

direction.'"77

While this testimony indicates Congress at least heard the term "consent" when it was

considering whether to enact what would later become section 351, Congress did not enact

anything into law about consent in or after 1924. In fact, in 1930, in response to a question about

compensation for a non-service-connected disability resulting from VA treatment, the comptroller

general informed the director of the Veterans' Bureau that the intent of the 1924 amendment to the

World War Veterans' Act was "'to afford veterans some measure of compensation in those cases

73

Gardner v. Brown (Gardner I), 5 F.3d 1456, 1460 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994).

74

Id. at 1462.

75

Veterans' Administration Benefits Consolidation Act of 1958, Pub. L. No. 85-857, 72 Stat. 1105, 1124 (Sept. 2,

1958).

76

The United States Veterans' Bureau is an early incarnation of what is today the Department of Veterans Affairs. See

Gardner I, 5 F.3d at 1457 n.1 (referring to the Veterans' Bureau as a "precursor[]" to the Department of Veterans

Affairs).

77

Id. at 1460 (emphasis added) (quoting World War Veterans' Legislation: Hearings on H.R. 7320 Before the H.

Comm. on World War Veterans' Legislation, 68th Cong., 1st Sess. 113, 114 (1924)).

14

in which the disability arises through accident, carelessness, negligence, lack of proper skill, error

in judgment, etc., on the part of any person charged with a duty respecting the hospitalization, or

medical or surgical treatment.'" 78 There simply is no evidence to suggest that principles of

informed consent were a part of the discussion at any point at which Congress was considering

what would become section 351.

The statutory language remained essentially unchanged for our purposes from 1958 to the

mid-1960s. 79 Congress again amended the statute in 1976 when it enacted minor changes to

remove gendered language from section 351 as part of the Veterans Disability Compensation and

Survivor Benefits Act of 1976.80 It is this version of the statute that was in effect in 1980. After

the 1976 changes, section 351 remained essentially the same, except for its relocation to section

1151, until the Supreme Court's decision in Gardner II, to which we will return in the next section.

But the year 1976 is important for a reason beyond the minor gendered-language-related

amendments to section 351. The 1976 amendments to section 351 also bring us to appellant's

arguments centered on 38 U.S.C. § 413181 and 38 C.F.R. § 17.3482 that were in effect at the time

of the 1980 Board decision.83 This statute, enacted in 1976, and its later-adopted implementing

regulation specifically required VA medical professionals to obtain a patient's informed consent

for treatment or other medical care. In 1976, Congress enacted section 4131 as part of the Veterans

Omnibus Health Care Act of 1976. 84 Congress spoke of section 4131 as a part of "a new

subchapter . . . entitled 'Protection of Patient Rights.'"85 Congress noted that the purpose of the

section was to ensure that "no patient care is furnished under the provisions of title 38, without the

full and informed consent of the subject-patient."86 Congress made no reference to section 351 (or

78

Id. at 1462 (quoting No. A-31895, 9 Comp. Gen. 515, 516 (1930)).

79

See Pub. L. No. 87-825, § 3, 76 Stat. 948, 950 (Oct. 15, 1962) (omitting an application deadline and adding language

about civil actions); see also Pub. L. No. 91-24, § 3, 83 Stat. 33, 33 (June 11, 1969) (deleting "hereafter" and adding

"on or after December 1, 1962").

80

Pub. L. No. 94-433, § 404(19), 90 Stat. 1374 (Sept. 30, 1976).

81

Today, this provision is located at 38 U.S.C. § 7331.

82

Today, this provision is located at 38 C.F.R. § 17.32.

83

Appellant's Br. at 7.

84

Pub. L. No. 94-581, § 111(a), 90 Stat. 2842, 2849 (Oct. 21, 1976).

85

94 CONG. REC. 30599, 30612 (Sept. 16, 1976).

86

S. REP. NO. 94-1206, at 115 (1976).

15

anything about the provision of disability-like compensation) in section 4131. Thus, it seems clear

to us that in 1976, while Congress considered section 351 a part of VA compensation benefits,

section 4131 and the informed-consent requirements were directed to VA health care and the duties

of medical professionals. Again, there simply is nothing in the statutory language or legislative

history of section 351 or section 4131 that suggests that Congress considered the requirement of

informed consent to be connected with the provision of disability compensation.

And nothing changed in the language of section 4131 between its enactment in 1976 and

October 1980, when the Board issued the decision that is the subject of appellant's CUE motion.

In 1980, section 4131 provided:

The Administrator, upon the recommendation of the Chief Medical Director and

pursuant to the provisions of section 4134 of this title, shall prescribe regulations

establishing procedures to ensure that all medical and prosthetic research carried

out and, to the maximum extent practicable, all patient care furnished under this

title shall be carried out only with the full and informed consent of the patient or

subject or, in appropriate cases, a representative thereof.[87]

There is nothing in this statutory language to suggest that there was any connection between the

informed-consent requirement and the provision of disability-like compensation under what was

then section 351.

The same lack of connection is apparent from the regulation VA adopted concerning the

informed-consent requirement VA imposed on its medical professionals, 38 C.F.R. § 17.34. In

1980, § 17.34 defined "informed consent" as "the knowing granting of permission by an individual

or the individual's legally authorized representative, which is freely given without any element of

fraud, duress, deceit, or other form of coercion to the administration or performance of a proposed

diagnostic or therapeutic procedure or course of treatment."88 The regulation also detailed what

must be provided to ensure consent is informed. But in 1980, neither the informed-consent statute

nor the regulation mentioned section 351 or in any way referenced that type of compensation, and

section 351 (and, as we will discuss, its implementing regulation, § 3.358) did not refer to informed

consent. In fact, as we will discuss below, a connection between the failure to obtain informed

consent and the provision of disability-like compensation occurred well after the 1980 Board

decision. In short, nothing but appellant's argument connects the distinct concepts of the

87

38 U.S.C. § 4131 (1976 & Supp. III 1980).

88

38 C.F.R. § 17.34 (1980).

16

requirement for medical professionals to obtain a patient's informed consent and the provision of

VA compensation for a failure to do so.

So, where are we now? At this point, we know that notions of informed consent did not

appear in the governing statutes until 1976, as part of a patient's bill of rights. And we know that

there is nothing in the statutory language or legislative history of the development of the law of

either informed consent at VA or the provision of compensation for VA medical care to suggest

Congress intended that a lack of informed consent provided a basis for disability-like

compensation in 1980. In the next section, we'll explain why the Board was correct that the history

of the regulations implementing section 351 and later section 1151 also provides no support for

appellant's position. But before we do so, we must consider one other aspect of appellant's

argument about the statutes.

Appellant would have us look at the common law more generally to support her view that

in 1980, section 351 provided for compensation based on a failure to obtain a patient's informed

consent before treatment.89 Appellant contends that a lack of informed consent was considered a

part of negligence law, and she generally cites several cases from various jurisdictions to support

her position.90 The problem is that these decisions show, at most, what the law was in some places

in the United States in or around 1980. She fails to establish that these cases, or any similar

authority, formed the backdrop for section 351. Stated differently, she points to nothing in the text

or legislative history of section 351 to show that Congress intended to adopt common law

negligence principles of informed consent as a basis for the compensation that is the subject of

section 351. Indeed, as we noted above, the language of section 351 has remained essentially the

same throughout the statute's history prior to Gardner II. Yet no one–including appellant–argues

that Congress intended to include a lack of informed consent within the ambit of section 351 when

Congress enacted it. And as we said, when we see Congress discussing informed-consent

principles in 1976, Congress does so through a statutory scheme entirely distinct from the

compensation-based section 351. This separation suggests that Congress was not swayed by (or,

frankly, that Congress even considered) principles of common law negligence when in 1976 it

enacted the minor amendments to section 351.

89

Again, we note that the Court has jurisdiction to address this argument only to the extent that it helps us understand

the meaning of section 351 in 1980.

90

Appellant's Br. at 10-11.

17

And even if we assumed that the fleeting reference to "consent" in the early legislative

history of section 351 (that is, in 1924) referred to common law concepts, appellant's argument

would still not be convincing. This is because, in 1924, when General Hines remarked about

consent,91 a lack of consent was a basis of recovery (if at all) as the intentional tort of battery,92

and not as a part of negligence law as it is today.93 And, in 1930, when the comptroller general

detailed the principles underlying what would become section 351, and referred to negligence-

based concepts, 94 not intentional tort concepts, we know that consent was not a part of his

discussion, as the common law did not include a lack of informed consent as a form of negligence

for tort purposes at that time.95

In sum, and leaving aside for the moment VA's implementing regulations, to which we will

turn next, appellant's CUE allegations fail to establish that the only reasonable interpretation of

section 351 in 1980 included a failure to obtain a patient's informed consent before treatment or

other care as a ground for the award of compensation. It certainly is not undebatable that informed

consent was a ground for section 351 compensation under the law in effect at the time of the 1980

Board decision as is required to establish CUE.96 And the 2021 Board's conclusion that appellant's

allegation of error did not constitute CUE is not arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.

D. Regulations Implementing Section 351 and 1151

In its June 2021 decision, the Board discussed section 351 as it existed at the time of the

1980 Board decision, and the Board noted that appellant failed to provide any support for her

argument that section 4131 and § 17.34 meant that compensation under section 351 based on VA's

failure to obtain a patient's informed consent for medical treatment was appropriate.97 The Board

further noted that "the statutes and regulations that now govern benefits under the section now

91

See Gardner I, 5 F.3d at 1460-61.

92

See Samuel D. Hodge, Jr., & Maria Zambrano Steinhaus, The Ever-Changing Landscape of Informed Consent and

Whether the Obligation To Explain a Procedure to the Patient May Be Delegated, 71 ARK. L. REV. 727, 731 (2019).

93

Id.

94

See Gardner I, 5 F.3d at 1462.

95

See Hodge & Steinhaus, supra note 92, at 731.

96

Russell, 3 Vet.App. at 313-14.

97

R. at 9.

18

codified at 38 U.S.C. § 1151 have substantially changed since the time of the Board's decision in

October 1980."98 The Board's discussion focused on the change in the implementing regulations,

first 38 C.F.R. § 3.358, and then 38 C.F.R. § 3.361.99 As we will discuss, the Board's examination

of the regulatory changes is instructive and further underscores the lack of merit in appellant's

arguments.100

Before turning to the regulatory history the Board discussed, we pause to reject appellant's

contention advanced most fully at oral argument that it is error for the Board or the Court to

consider anything that occurred after October 1980 when assessing whether there was CUE in the

October 1980 Board decision.101 As the Board recognized, and as we will discuss, the post-1980

regulatory changes provide context for how the statute (section 351) was understood at the time of

the 1980 Board decision. Stated differently, by looking at what was added to the legal landscape

later, we can see what was missing at the relevant time. The courts have not treated the correct

interpretation of a provision in the context of CUE as if those provisions existed in a vacuum.102

Instead, we have taken a more longitudinal view to understand a particular snapshot in time.

Appellant's argument turns the well-established legal principle that subsequent interpretations and

changes in law cannot constitute CUE 103 into a doctrine of enforced blindness. Appellant's

argument amounts to the contention that the Board and the Court may never consider even the

clearest indication that the law did not mean X at a given point in time by looking at anything after

that time. There is no binding law that supports this argument. We affirmatively reject it.

Turning to the regulatory history on which the Board relied, in 1980 section 351's

implementing regulation was § 3.358. It read in relevant part:

Compensation is not payable for either the contemplated or foreseeable after results

of approved medical or surgical care properly administered, no matter how remote,

98

R. at 10.

99

Id.

100

As we discussed above, to the extent appellant attempts to argue that the October 1980 Board decision contained

CUE based on a misapplication of § 3.358 or a failure to apply that regulation at all, we lack jurisdiction to consider

that matter because it was not advanced before the Board as a theory of CUE. We consider the regulatory history to

assess the Board's reasoning in rejecting the CUE theory appellant did make before the Board, a matter that, as we

have explained, we have jurisdiction to consider.

101

O.A. at 17:17-:31, 18:10-:32, 22:48-24:44.

102

See Perciavalle, 35 Vet.App. at 34; see also George, 142 S. Ct. at 1960-61.

103

George, 142 S. Ct. at 1960-61.

19

in the absence of a showing that additional disability or death proximately resulted

through carelessness, negligence, lack of proper skill, error in judgment, or similar

instances of indicated fault on the part of the Veterans' Administration. However,

compensation is payable in the event of the occurrence of an "accident" (an

unforeseen, untoward event), causing additional disability or death proximately

resulting from Veterans' Administration hospitalization or medical or surgical

care.[104]

We will start with the obvious. The regulation makes no mention of informed consent. This

fact is highly significant when we consider that, by contrast, the current implementing regulation

for section 1151, § 3.361, explicitly provides that "[t]o establish that carelessness, negligence, lack

of proper skill, error in judgment, or similar instance of fault on VA's part . . . proximately caused

a veteran's additional disability or death," a factor to be considered is whether "VA furnished the

hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate

cases, the veteran's representative's informed consent." 105 The current regulation provides that

informed consent is determined by compliance with the requirements of § 17.32, which was

formerly § 17.34. 106 In other words, the current regulation connects the informed-consent

requirement for medical professionals and the provision of disability-like compensation, a

connection that was missing before. Without more, simply looking at the regulation in place in

October 1980 and the one in place today makes clear that, at a minimum, something significant

had changed about how VA considered a lack of informed consent as it related to implementing

sections 351 and 1151. The Board recognized this change in its analysis, noting that § 3.361

"explicitly identifies the provision of medical care without obtaining informed consent as a type

of fault for which [section] 1151 benefits may be granted."107

But we do not have to rest merely on the self-evident change in the regulatory language

because the regulatory history underscores the plain-language differences in the regulations. We

begin in 1978, when VA amended § 3.358 to comply with a general counsel opinion about

accidents that occur during medical treatment.108 Appellant points to this general counsel opinion

104

38 C.F.R. § 3.358(c)(3) (1980).

105

38 C.F.R. § 3.361(d)(1)(ii) (2022).

106

Id.

107

R. at 10.

108

VA Gen. Couns. Prec. 2-78 (Oct. 1978).

20

to support her position that a failure to obtain a patient's informed consent was a ground upon

which compensation could be awarded under section 351 in 1980.109 It is true that the effect of

certain statutory changes was "to provide, in certain instances, for payment of compensation for

disability or death, resulting from [VA] hospitalization or medical or surgical care without regard

to whether there was fault or negligence on the part of [VA]."110 But the general counsel opinion

says nothing–nothing at all–about informed consent or how that concept relates to negligence. We

simply do not see how the opinion supports appellant's argument. This was the state of play in

October 1980.

The first time we see a mention of consent in the regulatory history is 1995, following the

1994 Supreme Court decision in Gardner II. There, the Court invalidated the version of § 3.358

that contained a fault requirement for establishing entitlement to compensation under section 1151

because the Court held that the statute itself did not require a showing of fault on VA's part.111 In

response to the Supreme Court's decision, VA again amended § 3.358 to remove the "fault-or-

accident requirement" and "instead provide[d] that compensation is not payable for the necessary

consequences of proper treatment to which the veteran consented."112 This is the first time the idea

of consent shows up in the history of the section 1151 compensation provisions–15 years after the

October 1980 Board decision that, appellant argues, contains CUE for failing to consider a failure

to obtain informed consent. In the decision on appeal, the Board discussed the Supreme Court's

invalidation of § 3.358 in Gardner II and noted that that change did not affect what the law was at

the time of the 1980 Board decision, when the version of § 3.358 without any reference to informed

consent was in place.113

When changing its regulation to comply with the Supreme Court's ruling, VA focused on

a footnote in the Supreme Court's opinion that included the phrase "volenti non fit injuria."114 VA

noted that "[a]lthough the Supreme Court found that the statutory language simply requires a

109

Appellant's Supp. Br. at 11.

110

43 Fed. Reg. 51015, 51015 (Nov. 2, 1978).

111

513 U.S. at 116.

112

60 Fed. Reg. 14222, 14222 (Mar. 16, 1995).

113

R. at 11.

114

513 U.S. at 119 n.3.

21

causal connection between an injury or aggravation of an injury and VA [treatment]," the Supreme

Court did not mean for every additional disability to be compensated under section 1151.115 VA

pointed to the Court's footnote noting that the Court did not intend to exclude the application of

the doctrine of volenti non fit injuria, "which is sometimes loosely translated as 'assumption of the

risk,' but more precisely refers to the doctrine of consent."116 Thus, VA "revised," a word VA

expressly used, § 3.358 to reflect the Supreme Court's decision "that [section] 1151 permits

compensation for all but the necessary consequences of properly administered VA medical or

surgical treatment or examination to which a veteran consented."117

The language VA used in the Federal Register indicates that the regulatory changes VA

proposed in the wake of the Supreme Court's decision in Gardner II represented a departure from

the way section 1151 compensation had previously been considered. VA specifically referred to

the changes as "revising" the regulation, and, as we said, language about consent appears for the

first time in connection with the provision of disability-like compensation in this context.118 VA

noted that "as reflected in the text of the rule, we have concluded that when the Supreme Court

stated that compensation should not be payable for the necessary consequences of treatment to

which the veteran 'consented,' the Court meant both express and implied consent."119 Again, VA

clearly saw the addition of a failure to obtain consent as a departure from the way section 1151

(and certainly section 351) compensation operated previously.

Congress also acted in response to Gardner II. Specifically, Congress amended section

1151 to clearly insert a fault requirement,120 and, in 1998, VA again proposed changes to the

implementing regulation to comply with the amended version of section 1151 Congress had

enacted.121 Specifically, VA proposed keeping § 3.358 in place to apply to claims before October

1997, the effective date of amended section 1151, and creating § 3.361 to implement Congress's

115

60 Fed. Reg. at 14222.

116

Id.

117

Id. at 14222-23.

118

38 C.F.R. § 3.358(c)(3) (1996) ("Compensation is not payable for the necessary consequences of medical or

surgical treatment or examination properly administered with the express or implied consent of the veteran.").

119

60 Fed. Reg. at 14222.

120

Pub. L. No. 104-204, § 422(a), 110 Stat. 2874, 2926 (Sept. 26, 1996).

121

63 Fed. Reg. 45004 (Aug. 24, 1998).

22

changes to section 1151. In the newly proposed regulation, § 3.361, a lack of informed consent

appears as a factor for establishing proximate cause, and VA incorporated the requirements of

§ 17.32, the regulation that then imposed the requirement that VA medical professionals obtain a

patient's informed consent.122

The 1998 proposed changes were rescinded due to improper notice and comment.123 But

VA proposed similar changes in 2002 and later adopted them in 2004. In proposing these changes,

VA noted that "[p]roposed § 3.361(d)(1)(ii), concerning consent to care, treatment, or

examination, is derived from current § 3.358(c)(3)" and "we propose to include a requirement that

consent be informed, in accordance with 38 C.F.R. § 17.32."124 Although appellant points to this

language as indicating that consent was already a part of the law and not a change in the regulation,

she fails to recognize that this revised regulation was "derived" from changes made in 1996. There

simply is no connection to 1980.

Overall, the regulatory history shows that a failure to obtain a patient's informed consent

became grounds upon which compensation was warranted under section 1151–in the 1990s, long

after the 1980 Board decision. Indeed, nothing in the regulatory history supports the notion that

such a failure was ever a basis for compensation under section 351. And at a minimum, appellant

has not shown that the only reasonable interpretation of the regulation in 1980 included

consideration of a failure to obtain informed consent. We conclude that the Board in 2021 was on

solid ground when it considered this regulatory history as part of its analysis about why there was

no CUE in the October 1980 Board decision.

E. Summary

Section 351 in 1980 did not contain any reference to informed consent, nor did it

incorporate the informed-consent provisions found at section 4131 and § 17.34. Appellant fails to

point to any authority indicating that a failure to obtain a patient's informed consent supported an

award of compensation under section 351 in October 1980. She points to nothing to show that it

is undebatable that a failure to obtain informed consent was a basis upon which the October 1980

Board could award compensation under section 351. Therefore, the Board decision on appeal

122

Id. at 45005-06.

123

64 Fed. Reg. 1131 (Jan. 8, 1999).

124

67 Fed. Reg. 76322, 76323 (Dec. 12, 2002).

23

finding no CUE in the October 1980 decision was not arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.

IV. CONCLUSION

After consideration of the parties' briefs, oral argument, the record on appeal, and the

governing law, the Court AFFIRMS the June 4, 2021, Board decision that the October 1980 Board

decision did not contain CUE. To the extent that appellant raises CUE allegations involving the

failure to comply with the common law or the misapplication of 38 C.F.R. § 3.358, we DISMISS

the appeal as to these matters for lack of jurisdiction.

24