This version includes the errata dated 7Jul03-e

**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No]{.smallcaps}. 98-354

[Richard D. Simmons, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee]{.smallcaps}.

On Appeal from the Board of Veterans\' Appeals

(Decided June 4, 2003 )

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

*Tim S. McClain*, General Counsel; *R. Randall Campbell*, Assistant
General Counsel; *Thomas A. McLaughlin*, Special Assistant to the
Assistant General Counsel; and *Cristine D. Senseman*, all of
Washington, D.C., were on the pleadings for the appellee.

Before FARLEY, STEINBERG, and GREENE, *Judges*.

STEINBERG, *Judge*: The appellant, veteran Richard D. Simmons, through
counsel, seeks review of a January 1998 Board of Veterans\' Appeals
(Board or BVA) decision that denied as legally insufficient a claim of
clear and unmistakable error (CUE) in an April 1977 decision by a
Department of Veterans Affairs (VA) regional office (RO) that had denied
VA service connection for arthritis and a nervous disorder. Record (R.)
at 3. The relevant filings of the parties, along with the protracted
procedural history of this case, will be detailed below. For the reasons
that follow, the Court will vacate the Board decision and remand the
matter.

**I. Relevant Background**

The veteran served in the U.S. Navy from November 1968 to January 1970.
R. at 14. His service medical records (SMRs) reported that he had
suffered from depression (R. at 23, 27) but contained no indication of
his having in-service arthritis (*see* R. at 17-32). A February 1972
private hospitalization discharge report noted that the veteran had
complained of \"arthritis of large joints since 12/20/71\"; he was
diagnosed as having \"\[p\]olyarthritis, probably rheumatoid,
seronegative\". R. at 34.

In September 1972, the veteran filed with the VARO an application for VA
compensation or pension based on arthritis. R. at 38-42. He submitted a
private medical record, dated September 1972, that described treatment
on \"December 20, 1971, \[for\] painful swelling . . . near the right
sacro iliac \[sic\] joint.\" R. at 45. In November 1972, a VA examining
physician diagnosed the veteran as having \"\[p\]olyarthritis, cause
undetermined\". R. at 62. The RO in December 1972 awarded the veteran
non-service-connected pension benefits for his arthritis, effective
December 1971. R. at 67‑68.

In June 1974, the veteran filed a claim for VA service connection for
rheumatoid arthritis; he asserted that his arthritis was a \"direct
result of his mental depression in service.\" R. at 80. In July 1974, he
submitted, inter alia, an April 1974 private hospitalization summary,
which diagnosed \"\[r\]heumatoid arthritis, seronegative\". R. at 86. An
August 1974 VA psychiatric examination report noted the veteran\'s
account that he had \"developed rheumatoid arthritis in December 1971\"
and diagnosed \"\[a\]nxiety reaction with depressive features, moderate
only, secondary to arthritis condition.\" R. at 123. The RO in September
1974 denied the veteran\'s \"reopened claim\" because his arthritis and
anxiety reaction \"were not incurred in or aggravated by his period of
military \[service;\] nor \[was\] it shown that he had arthritis
manifested within the first year following service.\" R. at 128-29.

In November 1974, the veteran submitted a letter from Dr. Herion, a
private physician, stating:

> On the basis of information contained in \[m\]edical \[r\]ecords
> covering \[the veteran\'s\] illness while in the United States Navy
> from August 1968 to January 1970, it is reasonable to presume that his
> illness then, which appeared as mental depression, was the same as
> that presenting as polyarthritis when I saw him in
> February 1972. . . . The brief interval between his discharge from the
> military and the onset of his polyarthritis would, I believe, make it
> likely that Mr. Simmons\[\'\] chronic disease was present even while
> he was in the United States Navy.

R. at 149. In December 1974, the RO confirmed its earlier denial of
service connection for arthritis; the RO concluded: \"Dr. Herion\'s
statement provides no basis to establish that rheumatoid arthritis
developed during \[the veteran\'s\] active military service or within
the \[one‑\]year presumpti\[on\] period following separation from
service.\" R. at 156.

In April 1977, the veteran submitted to the RO a private medical record
from Dr. Ford that contained a May 1970 diagnosis of \"\[a\]rthritis
(type undetermined) . . . \[and n\]ervous anxiety\". R. at 182. Later
that month, the RO confirmed its prior denial of both claims. R. at 184.
In May 1977, the RO notified the veteran of its decision in a letter
that stated: \"Dr. Ford\'s statement provides no basis to establish
service connection for arthritis and nervous condition.\" *Ibid.* The
veteran did not appeal to the Board any of the above RO decisions.

In September 1994, the veteran filed a claim asserting CUE as to that
April 1977 RO decision. R. at 316. It is unclear whether the RO in 1977
reopened the veteran\'s claims and then denied them on the merits or
whether the RO denied the veteran\'s attempt to reopen as to the
previously disallowed claims. For the purposes of this decision, the
Court need not decide that question, because, pursuant to *Crippen v.
Brown*, \"it does not matter whether a particular RO decision was or was
not a merits adjudication, because the disposition of the CUE claim
would ultimately turn on the same question.\" *Crippen*, 9 Vet.App. 412,
421 (1996) (stating that in either scenario the claimant must establish
that the merits \"would have \'manifestly\' been changed\" and also
quoting *Mason (Sangernetta) v. Brown*, 8 Vet.App. 44, 52 (1995)). In
July 1995, the veteran submitted a statement in which he asserted that
in April 1977 he had been entitled to a presumption of service
connection under 38 C.F.R. § 3.307(a)(3). R. at 339. In February 1995,
the RO denied his CUE challenge. R. at 346-48. The veteran timely
appealed to the Board. R. at 351, 359-60. In the January 1998 BVA
decision here on appeal, the Board denied the veteran\'s CUE claim.
R. at 3.

The appellant filed his brief in this case in January 1999, and in
April 1999 the Secretary filed a motion for single-judge affirmance. In
October 1999, the Court ordered the parties to file supplemental
memoranda as to the opinion of the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) in *Hayre v. West*, 188 F.3d 1327 (Fed. Cir.
1999). The appellant filed his supplemental memorandum in November 1999,
and the Secretary filed his response to the appellant\'s supplemental
memorandum in February 2000. On August 30, 2000, a panel of the Court
issued an opinion in this case affirming the January 1998 Board
decision. *Simmons v. West*, 14 Vet.App. 84, 91-92 (2000). The Court
entered its judgment on September 21, 2000. On November 13, 2000, the
Court recalled its judgment, noting that the enactment of the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(Nov. 9, 2000) (VCAA), may affect the disposition of many appeals under
its jurisdiction.

On December 5, 2000, the appellant, through counsel, filed a motion to
vacate the Court\'s August 30, 2000, opinion. On December 21, 2000, the
Court ordered the parties to file supplemental briefs addressing the
effect of the changes in law enacted in the VCAA. *Simmons v. Principi*,
14 Vet.App. 226 (2000) (per curiam order). In January 2001, the Court
also ordered that the appellant\'s motion to vacate the August 30, 2000,
opinion be held in abeyance pending receipt of the supplemental briefs.
*Simmons v. Principi*, No. 98-354, 2001 WL 122226 (Vet. App. Jan. 31,
2001) (per curiam order). On April 5, 2001, the Secretary filed a
response in which he asserted that a remand of the matters on appeal was
required pursuant to *Holliday v. Principi*, 14 Vet.App. 280 (2001), in
order for the case to be readjudicated in light of the enactment of the
VCAA. The Court construed the Secretary\'s response as a motion for
remand. On August 31, 2001, the Court revoked a July 13, 2000, order
that had submitted this appeal to a panel for a decision and returned
the matter to the single judge for disposition.

On September 10, 2001, in a single-judge order, the Court vacated the
Board decision and remanded the matters for readjudication in accordance
with the Secretary\'s unopposed, construed motion. *Simmons v.
Principi*, No. 98-354, 2001 WL 1167536, at \*2 (Vet. App. Sept. 10,
2001). On that same date, however, the Secretary (1) filed an opposed
motion to withdraw his April 2001 response and the construed motion for
remand, (2) moved to file a substitute response that he appended to his
motion, and (3) further moved for reinstatement of the Court\'s
September 2000 judgment, based on the Court\'s opinion in *Livesay
v. Principi*, 15 Vet.App. 165 (2001) (en banc) (holding that VCAA does
not apply to CUE claim as to prior BVA decision), of the judgment of
affirmance.

On September 17, 2001, the appellant filed, through counsel, a motion
for clarification of the Court\'s August 31, 2001, order. He noted,
among other things, that the Court had not ruled on his motion to vacate
the panel opinion of August 30, 2000. Motion at 2. He also inquired
whether, given the significant changes in the law represented by this
Court\'s opinion in *Livesay, supra,* and opinions of the Federal
Circuit in *Roberson v. Principi*, 251 F.3d 1378 (Fed. Cir. 2001), and
*Cook v. Principi*, 258 F.3d 1311 (Fed. Cir. 2001) \[hereinafter *Cook
I*\], *opinion withdrawn*, 275 F.3d 1365 (Fed. Cir. 2002) \[hereinafter
*Cook II*\], the parties would be provided an opportunity for
supplemental briefing. *Ibid*.

On September 19, 2001, the appellant filed a response in opposition to
the Secretary\'s motion to file a substituted response. He asserted that
the holding in *Livesay* is not dispositive of the CUE claim in this
case because *Livesay* involved the assertion of CUE as to a Board
decision under 38 U.S.C. § 7111, whereas this case involves CUE as to an
RO decision, which is governed by 38 U.S.C. § 5109A and 38 C.F.R. §
3.105 (2002). Response (Resp.) at 1-2. Additionally, he noted that the
Court\'s opinion in *Livesay* supports a remand in this case of the
issue of the nonfinality of the 1977 RO decision based on grave
procedural error. Resp. at 2. *See Hayre v. West*, 188 F.3d 1327, 1333
(Fed. Cir. 1999); *see also Cook I*, *supra*. On October 1, 2001, the
Secretary filed a motion for reconsideration of, or, in the alternative,
for a panel decision replacing, the September 10, 2001, single-judge
order.

In a June 7, 2002, per curiam order, the Court (1) sua sponte withdrew
the September 10, 2001, order; (2) submitted the matter to the instant
panel; (3) sua sponte withdrew the Court\'s August 30, 2000, panel
opinion; (4) denied the Secretary\'s motion to withdraw his April 5,
2001, response and to substitute his September 30, 2001, response, but
accepted the September 2001 filing as a supplemental response; and (5)
ordered the appellant to file a supplemental memorandum addressing the
Secretary\'s September 2001 supplemental response, as well as the
effect, if any, of the opinions in *Roberson*, *Hayre*, and *Livesay*,
all *supra*, as well as *Disabled American Veterans v. Gober*, 234 F.3d
682, 704 (Fed.Cir. 2001) \[hereinafter *DAV v. Gober*\], *cert. denied*,
532 U.S. 973 (2001), on this matter. *Simmons v. Principi*, 16 Vet.App.
153, 155 (2002) (per curiam order).

The appellant filed a supplemental memorandum on June 24, 2002. Therein,
he argues (1) that under *Livesay*, the VCAA was inapplicable to his
case (Supplemental Memorandum (Mem.) at 2) but that \"*Livesay* is
**applicable** regarding the question of dealing with the \'grave
procedural error\' allegation made by the \[a\]ppellant in this matter\"
(Mem. at 10); (2) that the Federal Circuit\'s holding in *DAV v. Gober*
that a case asserting CUE as to a prior final Board decision should be
dismissed rather than denied where the appellant\'s arguments fail to
comply with specific-pleading requirements for CUE claims, *DAV v.
Gober*, 234 F.3d at 699, should be expanded to cases alleging CUE as to
a prior final RO decision (Mem. at 2); (3) that *Roberson*, 251 F.3d at
1384, requires the Court to remand his case to the Board with
instructions to remand the case to the RO, in order to address whether
the April 1977 RO decision complied with the duty to assist (Mem. at
5-6); and (4) that *Hayre* should require a remand in this case, but
that \"the parties and this Court may be well served if the proceedings
in this matter were stayed pending the en banc decision in *Cook*\"
(Mem. at 10).

The Secretary responded to the appellant\'s supplemental memorandum on
September 23, 2002. Therein, the Secretary requests a stay of
proceedings pending the outcome of *Cook II*, *supra* (Response (Resp.)
at 1), and argues (1) that *Livesay*, 15 Vet.App. at 176, supports the
Secretary\'s position in this case and does not require a remand for
consideration of an asserted \"grievous \[sic\] procedural error\"
(Resp. at 4); (2) that *Roberson*, *supra*, should be narrowly construed
and does not dictate a remand in this case (Resp. at 5-7); and (3) that
the Court should affirm the instant Board decision, because \"\[a\]
denial or termination under such conditions would not be a merits
determination, and would not preclude a later CUE attack on the same RO
decision\" (Resp. at 8). The appellant filed on October 3, 2002, his
reply to the Secretary\'s response. He reiterates the arguments from his
supplemental memorandum, and notes that he did not object to a stay of
proceedings pending the outcome of *Cook II*, *supra*. Reply at 1-7. On
November 13, 2002, this matter was stayed pending the outcome of *Cook
II*, *supra*.

On December 20, 2002, the Federal Circuit issued its opinion in *Cook v.
Principi*, 318 F.3d 1334 (Fed. Cir. 2002) \[hereinafter *Cook III*\]. On
January 10, 2003, the appellant filed a motion to stay proceedings
pending a decision by the U.S. Supreme Court on a petition for a writ of
certiorari, which his counsel, who was also counsel in *Cook*,
contemplated filing in *Cook III*, *supra*. On February 11, 2003, the
Court dissolved the November 13, 2002, stay of proceedings and denied
the appellant\'s December 20, 2002, motion to stay proceedings any
further.

**II. Analysis**

***A. VCAA***

In *Livesay*, this Court held that the VCAA was inapplicable to a CUE
claim as to a prior final ***Board*** decision. *Livesay*, 15 Vet.App.
at 178. Also, in *Parker v. Principi*, we held, in a case involving a
CUE claim as to a prior final ***RO*** decision, that the Secretary\'s
VCAA remand motion \"has no merit following this Court\'s decision in
*Livesay*.\" *Parker*, 15 Vet.App. 407, 412 (2002); *see also Juarez v.
Principi*, 16 Vet.App. 518, 521 (2002) (per curiam order) (citing
*Parker* as \"holding VCAA inapplicable to claim that RO decision
contained CUE\"). Hence, the Court will not further discuss this issue.

***B. Grave-Procedural-Error Claim***

The appellant, in his supplemental memorandum, relies on *Hayre* and
*Livesay*, both *supra*, to support his contention that this matter
should be remanded on the basis that a \"grave procedural error\" was
committed during the adjudication of his claim. Mem. at 10. The Federal
Circuit recently held in *Cook III* that the finality of a VA decision
could not be vitiated by a \"grave procedural error\" on the part of VA.
*Cook* 318 F.3d at 1341 (overruling holding of *Hayre, supra,* that
finality of RO decision was vitiated when VA committed \"grave
procedural error\" by failing to obtain service medical records
requested several times by appellant). In *Cook III*, the asserted
\"grave procedural error\" was an RO\'s failure to provide the veteran
with a proper medical examination. *Ibid*. Similarly, in the instant
case, the appellant has argued that \"VA\'s failure to obtain a
comprehensive medical evaluation to determine whether the 10% threshold
under 38 C.F.R. § 3.30\[7\](a) \[(1976)\] had been met constituted a
breach of its duty to assist\" and that \"\[u\]nder *Hayre*\[,
*supra*\], the appellant\'s 1977 claim to entitlement to
service\[‑\]connected arthritis should be considered unadjudicated or
nonfinal.\" Nov. 1999 Mem. at 2. Because a nearly identical argument was
rejected by the Federal Circuit in *Cook III*, the Court holds in this
case that the appellant\'s assertion that he was not provided a
\"comprehensive medical evaluation\" cannot, as a matter of law, serve
to vitiate the finality of the April 1977 BVA decision. *Cook III*,
*supra.*

***C.* Roberson** ***Development***

The appellant argues the following as to *Roberson*, *supra*:

> The \[a\]ppellant would assert that the Federal Circuit\'s decision in
> *Roberson* **requires** that this matter be remanded to the Board with
> instructions to remand to the \[RO\] for **readjudication** of the
> \[a\]ppellant\'s claim of VARO CUE in light of the Federal Circuit\'s
> decision regarding the standard to be utilized in the review of claims
> of CUE. . . .
>
> In the instant matter, the Board should be instructed by the Court to
> instruct the \[RO\] to determine whether the April 1977 \[RO
> d\]ecision **fully developed** the \[a\]ppellant\'s claims for service
> connection for arthritis and a nervous condition **before** deciding
> it on the merits. Specifically, whether the \[RO\] had **fully
> developed** whether there were symptoms or manifestations of a chronic
> condition of rheumatoid arthritis during the presumpti\[on\] period
> provided in 38 C.F.R. § 3.307(a)(3).

Mem. at 5-6 (emphasis in original).

In *Roberson*, the Federal Circuit held that if a veteran submits
evidence of a medical disability for which he is then awarded service
connection, makes a claim for the highest rating possible, and submits
evidence of unemployability, as had the veteran in that case, then VA
must consider a rating of total disability based upon individual
unemployability (TDIU), even if not specifically requested by the
veteran. *Roberson*, 251 F.3d at 1382-85. The Federal Circuit stated:

> In *Hodge v. West*, 155 F.3d 1356 (Fed. Cir. 1998), we . . .
> determined that Congress has mandated that . . . VA is \"to fully and
> sympathetically develop the veteran\'s claim to its optimum before
> deciding it on the merits.\" We see no basis for applying a different
> standard to a CUE claim, and we hold that . . . \[\]VA is thus
> required to consider a CUE claim using the standard of *Hodge*.

*Roberson*, 251 F.3d at 1384.

The appellant\'s *Roberson* arguments appear to rely on the Federal
Circuit\'s statement that the \"standard of *Hodge*\" should apply to
CUE claims. However, in *Lane v. Principi*, this Court explained the
limited application of *Roberson*, which \"involved a situation where
the Federal Circuit applied the *Hodge* standard in addressing the CUE
determination that was before it in order to find and require
development of a non-CUE claim that was still open and pending before
VA.\" *Lane*, 16 Vet.App. 78, 86-87 (2002). The Court went on to hold
that \"because . . . the appellant has not raised any argument as to a
pending non-CUE claim, any *Hodge* standard of development is

inapplicable.\" *Id*. at 87. Furthermore, the Federal Circuit, in *Cook
III*, stated that \"\[i\]n *Roberson*, a critical issue was whether, in
addressing Roberson\'s claim that there was CUE as to the 1984 rating
decision, . . . VA and the \[Court of Appeals for Veterans Claims\] had
erred by failing to recognize that in his original claim, Roberson has
sought \[TDIU\].\" *Cook III*, 318 F.3d at 1347.

In the instant case, the appellant has neither raised nor asserted that
he had sought TDIU at the time of his original April 1977 RO decision.
Furthermore, there are no pending non-CUE claims related to that RO
decision; the only arguments raised by the appellant in that respect,
i.e., assertions that his claim is nonfinal due to a \"grave procedural
error\", were rejected in part II.B., above. Therefore, as we held in
*Lane*, \"any *Hodge* standard of development\" and *Roberson* are
inapplicable to this case. *Lane, supra*.

***D. CUE Claim***

***1. Relevant Law***

An RO decision that has become final, as had the April 1977 RO decision,
generally may not be reversed or amended in the absence of CUE. *See*
38 U.S.C. § 5109A (codifying into law VA regulation 38 C.F.R.
§ 3.105(a)); 38 C.F.R. § 3.105(a) (1997); *see also* 38 U.S.C. §§ 5108,
7105(c); *cf.* 38 U.S.C. § 5110(i) (2002) (providing that when
previously disallowed claim is reopened and allowed on basis of new and
material evidence in form of service department records, effective date
is date such disallowed claim was filed).

VA regulatory § 3.105(a) provides:

> Where evidence establishes \[CUE\], the prior decision will be
> reversed or amended. For the purpose of authorizing benefits, the
> rating or other adjudicative decision which constitutes a reversal of
> a prior decision on the grounds of \[CUE\] has the same effect as if
> the corrected decision had been made on the date of the reversed
> decision.

38 C.F.R. § 3.105(a) (2002). The CUE claim presented here is a
collateral attack on a final RO decision. *See* *Crippen*, 9 Vet.App. at
418; *see also Fugo v. Brown*, 6 Vet.App. 40, 44 (1993).

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

> Either the correct facts, as they were known at the time, were not
> before the adjudicator or the statutory or regulatory provisions
> extant at the time were incorrectly applied. . . . \[CUE is\] the sort
> of error which, had it not been made, would have manifestly changed
> the outcome . . . \[, an error that is\] undebatable, so that it can
> be said that reasonable minds could only conclude that the original
> decision was fatally flawed at the time it was made.

*Russell*, 3 Vet.App. 310, 313-14 (1992) (en banc); *see also* *Bustos
v. West*, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting the
\"manifestly changed the outcome\" language in *Russell*, *supra*),
*cert. denied*, 528 U.S. 967 (1999). \"A determination that there was a
\'\[CUE\]\' must be based on the record and the law that existed at the
time of the prior . . . decision.\" *Id.* at 314. \"In order for there
to be a valid claim of \[CUE\], . . . \[t\]he claimant, in short, must
assert more than a disagreement as to how the facts were weighed or
evaluated.\" *Id*. at 313; *see also* *Damrel v. Brown*, 6 Vet.App. 242
(1994). Moreover, a CUE motion must identify the alleged error(s) with
\"some degree of specificity.\" *Crippen*, 9 Vet.App. at 420; *Fugo*,
6 Vet.App. at 44 (\"to raise CUE there must be some degree of
specificity as to what the alleged error is and . . . persuasive reasons
must be given as to why the result would have been *manifestly*
different\"). On appeal of a BVA determination that there was no CUE as
to a prior final RO decision, the Court\'s review is limited to
determining whether the Board\'s conclusion 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* *Beyrle
v. Brown*, 9 Vet.App. 24 (1996); *see also* *Dobbin v. Principi*,
15 Vet.App. 323, 326 (2001); *Eddy v. Brown*, 9 Vet.App. 52, 57 (1996);
*Damrel*, 6 Vet.App. at 246; *Russell*, 3 Vet.App. at 315.

***2. Preclusive Effect of Board Denial***

In *DAV v. Gober*, *supra*, the Federal Circuit addressed a VA
regulation, 38 C.F.R. § 20.1404(b) (2000), that provided as follows
regarding a CUE claim collaterally attacking a prior final decision of
the Board:

> \(b\) *Specific allegations required*. The motion must set forth
> clearly and specifically the alleged clear and unmistakable error, or
> errors, of fact or law in the Board decision, the legal or factual
> basis for such allegations, and why the result would have been
> manifestly different but for the alleged error. Non-specific
> allegations of failure to follow regulations or failure to give due
> process, or any other general, non-specific allegations of error, are
> insufficient to satisfy the requirement of the previous sentence.
> Motions which fail to comply with the requirements set forth in this
> paragraph ***shall be denied.***

38 C.F.R. § 20.1404(b) (2000) (emphasis added). The Federal Circuit
noted that the denial of a CUE claim under § 20.1404(b) (2000) would be
a \"final decision\" under this Court\'s opinion in *Russell*,
3 Vet.App. at 315. *DAV v. Gober*, 234 F.3d at 698. The Federal Circuit
further noted that, pursuant to 38 C.F.R. § 20.1409(c) (2000), once
there is a final decision on a CUE claim on a particular issue, the
prior Board decision being collaterally attacked \"\'on that issue is no
longer subject to revision on the grounds of \[CUE\]\'\", and
\"\'\[s\]ubsequent motions relating to that prior Board decision on that
issue shall be dismissed with prejudice.\'\" *DAV v. Gober*, 234 F.3d at
698 (quoting 38 C.F.R. § 20.1409(c) (2000)). The Federal Circuit then
read § 20.1404(b) and § 20.1404(c) together and concluded:

> \[These paragraphs\] operate together to insulate from CUE review any
> issue in a prior Board decision that was the subject of a CUE motion
> that was found to be defective for any of the reasons set forth in \[§
> 20.\]1404(b). Consequently, the Board decision on the issue the
> claimant attempted to challenge in the defective CUE motion is not
> subject to revision due to CUE. *See* 38 C.F.R.
> § 20.1409(c)\[(2000)\].

*DAV v. Gober*, 234 F.3d at 698. After noting the 38 U.S.C. § 7111(e)
requirement that CUE claims be adjudicated \"on the merits\", the
Federal Circuit concluded:

> \[Regulatory § 20.\]1404(b)\'s requirement that a claimant specify the
> basis for his CUE claim is reasonable. . . . VA is correct that
> Congress directed the Board to promulgate rules to require CUE claims
> to be plead with specificity in order to \"make consideration of
> appeals raising \[CUE\] less burdensome.\" H.R. [\[Rep]{.smallcaps}.\]
> No. 105-52, at 3. At the same time, however, as just explained, the
> effect of the last sentence of \[§ 20.\]1404(b), in conjunction with
> \[§ 20.\]1409(c), is to shield from CUE review any issue that is the
> subject of a CUE motion that is \"denied\" because the motion does not
> comply with the pleading requirements of \[§ 20.\]1404(b). As a
> result, the Board may never decide a particular CUE claim \"on the
> merits,\" as required by 38 U.S.C. § 7111(e), not because the claimant
> failed to establish, substantively, his CUE claim, but, rather,
> because of pleading defects in the motion in which the claim is first
> advanced. For this reason, we believe that \[§ 20.\]1404(b), in the
> manner it operates in tandem with \[§ 20.\]1409(c), is contrary to the
> requirement of 38 U.S.C. § 7111(e) that the Board decide a CUE claim
> on the merits. We therefore hold, as it operates with \[§
> 20.\]1409(c), \[§ 20.\]1404(b) is invalid.

*DAV v. Gober*, 234 F.3d at 699. Subsequent to the Federal Circuit\'s
opinion in *DAV v. Gober*, the Secretary amended § 20.1404(b) in 66 Fed.
Reg. 35,903 (July 10, 2001). The last sentence of § 20.1404(b) now
reads: \"Motions which fail to comply with the requirements set forth in
this paragraph shall be dismissed without prejudice to refiling under
this subpart.\" 38 C.F.R. § 20.1404(b) (2002).

In the instant case, the appellant brought a claim of CUE as to the
April 1977 RO decision. R. at 9. The Board, in its January 1998 decision
under review, discussed the *Fugo* specific-pleading requirements for
CUE claims and concluded that \"the appellant\'s claim of CUE . . . must
be denied as legally insufficient.\" R. at 10. In *Fugo*, this Court
determined that the appellant had \"not reasonably raised . . . CUE\"
because he had \"fall\[en\] far short of alleging the kind of error that
could be considered CUE\" by failing to give \"some degree of
specificity as to what the alleged error is and . . . persuasive reasons
. . . as to why the result would have been *manifestly* different but
for the alleged error.\" *Fugo*, 6 Vet.App. at 43-44.

Here, the appellant\'s claim of CUE as to a prior final RO decision was
***denied*** by the Board, rather than simply not adjudicated, as in
*Fugo*. R. at 12. Furthermore, this denial appears to have been based on
the \"legal insufficien\[cy\]\" of the appellant\'s claim. R. at 10.
Pursuant to 38 U.S.C. § 5109A(e), a request for revision of an RO
decision on the basis of CUE \"shall be submitted to the Secretary and
***shall be decided in the same manner as any other claim***.\"
38 U.S.C. § 5109A(e) (emphasis added). Although section 5109A does not
contain a statutory provision pertaining to review of CUE claims as to a
prior final ***RO decision*** that is directly analogous to 38 U.S.C.
§ 7111(e)\'s requirement that the Board decide a CUE claim \"on the
merits\", it would be incongruous to conclude that Congress intended to
require one class of CUE claims to receive scrutiny \"on the merits\",
but was content to allow another class of CUE claims, such as the
appellant\'s, to be preclusively denied merely because it failed to meet
pleading specifications. *Cf.* *Juarez*, 16 Vet.App. at 520-21
(characterizing *Parker*, *supra*, as holding \"VCAA inapplicable to
claim that RO decision contained CUE\"). Moreover, the Court notes that
claims for benefits are not subject to preclusive ***denial*** by the
Board for pleading insufficiencies. *See* 38 U.S.C. §§ 5102(b)
(providing that, in event of incomplete application, VA shall \"notify
the claimant . . . of the information necessary to complete the
application\"), 7105(d)(5) (\"\[t\]he Board . . . may ***dismiss*** any
appeal which fails to allege specific error of fact or law in the
determination being appealed\" (emphasis added)); *see also* 38 U.S.C.
§§ 5108 (providing that previously and finally disallowed claims may be
reopened upon presentation of new and material evidence), 7266(a)
(providing for filing Notice of Appeal (NOA) to this Court to appeal
\"final\" Board decisions). Additionally, we note that, in the VCAA,
Congress eliminated the well-grounded-claim provision from section
5107(a). *See Holliday*, 14 Vet.App. at 284-85. Although this provision
was technically a substantive, rather than a pleading, requirement, *see
Caluza v. Brown*, 7 Vet.App. 498, 506 (1995), denial for failure to
submit a well-grounded claim could be viewed as being akin to denial for
a pleading insufficiency. *See Nolen v. Gober*, 222 F.3d 1356, 1360
(Fed. Cir. 2000) (noting that \"the well\[-\]grounded claim requirement
serves a \'gatekeeping\' function in the claims process -- if the
veteran presents a well\[‑\]grounded claim to the RO, that triggers the
DVA\'s statutory duty to assist the veteran in perfecting the claim\").
Hence, it is relevant for our purposes here to note that to the extent
that this requirement could be construed as a pleading requirement, not
only did Congress in the VCAA repeal the well-grounded-claim provision,
but it also statutorily vitiated for a set period of time before the
enactment of the VCAA the res judicata effect of final denials for lack
of well groundedness under pre-VCAA section 5107(a). VCAA § 7(b)(1),
(2); *see Holliday*, 14 Vet.App. at 285.

In reviewing BVA decisions on CUE claims, under 38 U.S.C. § 7252(a) this
Court has \"the power to affirm, modify, or reverse a decision of the
Board, or to remand the matter.\" This Court does not, however,
***affirm the*** ***denial*** of a claim where the appellant has failed
to comply with the pleading requirements of the Court; the remedy in
such cases is a dismissal. *See* [U.S. Vet. App. R.]{.smallcaps} 31(b)
(\"If an appellant fails to file a brief within the time provided by
this rule, . . . the Court, on its own initiative or on motion by the
Secretary, may take appropriate action, to include ***dismissal*** of
the appeal.\"). (Such dismissals are without prejudice, but the
practical effect of such a dismissal may preclude the refiling of an
appeal. *See* 38 U.S.C. § 7266(a) (providing that NOA must be filed
within 120 days after the date on which notice of the appealed Board
decision is mailed).) Therefore, we conclude that section 5109A(e)\'s
statement that such cases \"shall be decided in the same manner as any
other claim\" is the functional equivalent of section 7111(e)\'s
requirement that the Board must decide CUE claims \"on the merits\".

As stated above, the Federal Circuit, in *DAV v. Gober*, 234 F.3d at
699, held that a CUE claim as to a prior final Board decision could not
be ***denied*** for failure to meet pleading requirements, and, indeed,
the Secretary in current § 20.1404(b) has addressed this concern in the
context of CUE claims as to a prior final ***Board*** decision. In the
instant case, however, it appears that the appellant\'s CUE claims as to
a prior final ***RO*** decision may have been ***denied*** for its
failure to meet the pleading requirements as set out in *Fugo*, *supra*.
*See* part II.D.3., below. Although nothing in *DAV v. Gober* calls into
question *Fugo*\'s specific-pleading requirements for CUE claims, the
Federal Circuit\'s opinion does make clear that CUE assertions that fail
to satisfy pleading requirements must be ***dismissed without
prejudice*** to refiling, and may not be denied. *DAV v. Gober*,
*supra*. Given the functional equivalence of section 5109A(e) to section
7111(e) in terms of mandating a decision on the merits of a CUE claim,
whether asserted as to RO decisions or Board decisions, allowing a CUE
claim as to a prior final RO decision to be denied rather than dismissed
without prejudice would run counter to the holding of *DAV v. Gober*,
*supra*. Indeed, such a result would produce the \"absurd result\" of
treating disparately those claimants collaterally attacking RO decisions
and those claimants collaterally attacking BVA decisions. *See United
States v. X-Citement Video, Inc.*, 513 U.S. 64, 68-69 (1994); *Green v.
Bock Laundry Mach. Co.*, 490 U.S. 504, 509 (1989); *United States v. Am.
Trucking Ass\'ns, Inc*., 310 U.S. 534, 543 (1940); *Allen (William) v.
Principi*, 237 F.3d 1368, 1375-76 (Fed. Cir. 2001); *Timex V.I., Inc. v.
United States*, 157 F.3d 879, 886 (Fed. Cir. 1998); *Thayer v.
Principi*, 15 Vet.App. 204, 210 (2001); *Holliday v. Principi*,
14 Vet.App. 280, 285 (2001) (citing precedent regarding need to avoid
absurd result when interpreting statute); *Cottle v. Principi*,
14 Vet.App. 329, 334 (2001); *Faust v. West*, 13 Vet.App. 342, 350
(2000); *Trilles v. West*, 13 Vet.App. 314, 324 (2000) (en banc);
*Davenport v. Brown*, 7 Vet.App. 476, 483-84 (1995); *Gardner v.
Derwinski*, 1 Vet.App. 584, 587 (1991). In order to avoid such absurd
results, we thus hold that, to the extent that *Fugo* or any other case
of this Court can be read to hold that it is permissible to deny, rather
than dismiss without prejudice, a CUE claim as to a prior final RO
decision because an appellant failed to meet pleading specifications,
such opinions have been overruled by *DAV v. Gober*, *supra*. Following
*DAV v. Gober*, the proper remedy for the Board, when confronted with an
inadequately plead CUE claim, whether that claim collaterally attacks a
Board decision, *see* 38 C.F.R. 20.1404(b) (2002), or an RO decision,
*see* 38 C.F.R. § 3.105(a), is to dismiss that challenge without
prejudice.

Accordingly, to the extent that the Board decision on appeal denied the
claim preclusively basedon pleading insufficiencies, that denial must be
set aside as contrary to section 5109A(e) and *DAV v. Gober*, *supra*.
This brings us to the language of the January 1998 BVA decision on
appeal.

***3. Reasons or Bases***

It is a well-established principle that a Board decision must be written
with \"reasonable clarity\". *Gilbert v. Derwinski*, 1 Vet.App. 49, 57
(1990). As noted above, the Board in this case denied the appellant\'s
CUE motion on the grounds that it was \"legally insufficient\". R. at
10. However, it is not clear whether the Board\'s denial was based on a
pleading insufficiency under *Fugo*, *supra*, or whether the Board
attempted, rather inexactly, to address the merits of the appellant\'s
CUE motion. Indeed, the Board decision in this case is, as we described
the Board decision in *Luallen v. Brown*, which also addressed an
allegation of CUE from a prior final RO decision, \"a model of
imprecision.\" *Luallen*, 8 Vet.App. 92, 95 (1995). In *Luallen*, the
Court determined that the \"imprecision\" of the Board decision was \"of
little significance\", because the Court there affirmed the Board
decision. *Ibid.* In light of the above discussion, however, we cannot
reach the same conclusion here. Indeed, the \"imprecision\" of the Board
decision on appeal could lead to two divergent results, i.e., dismissal
without prejudice (if the basis of the decision was a pleading
insufficiency) or denial (if the basis of the decision was the merits of
the CUE allegation), depending upon the interpretation given to that
\"imprecision\".

It would be pure speculation for us to conclude that the Board did not
deny the appellant\'s claim on the basis of a pleading insufficiency.
Rather, because the Board may well have preclusively denied the claim on
the basis of a pleading insufficiency, we must vacate the Board decision
and remand the matter for compliance with section 5109A(e) and *DAV v.
Gober*, *supra*. To do otherwise would be unjust to the appellant
because it would place him in what might be construed as a res judicata
position because of an ambiguity in the Board\'s decision. As we
explained in *Gilbert*: \"These \[Board\] decisions ***must contain
clear analysis and succinct but complete explanations***. A bare
conclusory statement, without both supporting analysis and explanation,
is neither helpful to the veteran, nor \'clear enough to permit
effective judicial review\', nor in compliance with statutory
requirements.\" *Gilbert*, *supra* (emphasis added) (quoting *Int\'l
Longshoremen\'s Assoc. v. Nat\'l Medication Bd.*, 870 F.2d 733, 735
(D.C. Cir. 1989)); *see also* 38 U.S.C. § 7104(d)(1). On remand, the
Board will be mindful that if the basis for the Board\'s decision is a
failure of the appellant to plead CUE with the specificity required by
*Fugo*, *supra*, the remedy is dismissal without prejudice, not denial.
Furthermore, if the Board adjudicates the appellant\'s CUE claims on the
***merits***, it must provide a statement of the reasons or bases for
that decision that is adequate to enable the appellant to understand the
precise basis for that decision and to facilitate review in this Court
should that claim be denied. *See* 38 U.S.C. § 7104(d)(1); *Gilbert*,
*supra*.

**III. Conclusion**

On the basis of the above analysis, the Court vacates the January 1998
Board decision and remands the matter for issuance of a readjudicated
decision supported by an adequate statement of reasons or bases, *see*
38 U.S.C. §§ 1110, 7104(a), (d)(1); 38 U.S.C. § 5109A(e); *DAV v.
Gober*, *supra*; *Fletcher* *v. Derwinski*, 1 Vet.App. 394, 397 (1991),
all consistent with this opinion, and in accordance with section 302 of
the Veterans\' Benefits Improvements Act of 1994 (VBIA), Pub. L. No.
103-446, § 302, 108 Stat. 4645, 4658 (found at 38 U.S.C. § 5101 note)
(requiring Secretary to provide for \"expeditious treatment\" for claims
remanded by BVA or the Court); *see Vargas-Gonzalez v. Principi*,
15 Vet.App. 222, 225-30 (2001) (holding that VBIA § 302 applies to all
elements of a claim remanded by Court or Board), and with all applicable
law and regulation. *See Allday*, 7 Vet.App. at 533‑34. On remand, the
appellant will be free to submit additional evidence and argument on the
remanded claim in accordance with *Kutscherousky v. West*, 12 Vet.App.
369, 372-73 (1999) (per curiam order) (concluding that appellant is
entitled, until 90 days after Board mails postremand notice to
appellant, to submit additional evidence, as appropriate to claim in
question, and argument or to request hearing on appeal, at which
appellant may submit new evidence and argument), and the Board is
required to consider any such evidence and argument. *See Kay
v. Principi*, 16 Vet.App. 529, 534 (2002). A remand by this Court or by
the Board confers on an appellant the right to VA compliance with the
terms of the remand order and imposes on the Secretary a concomitant
duty to ensure compliance with those terms. *See Stegall v. West*,
11 Vet.App. 268, 271 (1998). A final decision by the Board following the
remand herein ordered will constitute a new decision that, if adverse,
may be appealed to this Court only upon the filing of a new NOA with the
Court not later than 120 days after the date on which notice of the
Board\'s new final decision is mailed to the appellant. *See Marsh
v. West*, 11 Vet.App. 468, 472 (1998).

VACATED AND REMANDED.