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

**No. 01-2030**

**[Lanier V. Hines, Appellant]{.smallcaps},**

**v.**

**[Anthony J. Principi,]{.smallcaps}**

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

**On Appeal from the Board of Veterans\' Appeals**

**(Argued** January 15, **2004 Decided August 17, 2004)**

*Howard M. Sanders*, of Columbus, Ohio, for the appellant.

*Rebecca L. Ahern Baird*, **with whom *Tim S. McClain*, General Counsel;
*R. Randall Campbell*, Assistant General Counsel; and** *Carolyn F.
Washington*, Deputy Assistant General Counsel, all of Washington, D.C.,
were on brief, for the appellee.

Before KRAMER, *Chief Judge*, and STEINBERG and GREENE, *Judges*.

STEINBERG, *Judge*, filed the opinion of the Court. KRAMER, *Chief
Judge*, filed a dissenting opinion.

STEINBERG, *Judge*: The appellant, through counsel, seeks review of an
August 24, 2001, Board of Veterans\' Appeals (Board or BVA) decision
that concluded that there was no clear and unmistakable error (CUE) in a
June 17, 1976, Department of Veterans Affairs (VA) regional office (RO)
decision that had denied VA service connection for hy***po***thyroidism.
Record (R.) at 1-30. The appellant and the Secretary each filed a brief,
and the appellant filed a reply brief. This appeal is timely, and the
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For
the reasons set forth below, the Court will vacate the Board decision
and remand the matter for further development and readjudication.

**I. Relevant Background**

The appellant had qualifying service in the U.S. Army Reserves from May
1975 to March 1976. R. at 33. In a December 1974 preservice clinical
evaluation report, an examiner checked the \"normal\" box next to
\"endocrine system\" (R. at 35) and the appellant, in responding to the
question \"Have you ever had or have you now\" such a condition, checked
the \"No\" box next to \"thyroid trouble\"; the appellant also reported
that he was in \"\[e\]xcellent \[h\]ealth\" (R. at 37).

The appellant was diagnosed in service as having thyrotoxicosis in June
1975 (R. at 50); that same month, he was admitted to Brooke Army Medical
Center (Brooke AMC) and diagnosed as having, inter alia,
hy***per***thyroidism and Graves\' disease; these conditions were the
primary basis for his admission (R. at 173). (\"Thyrotoxicosis\" is
\"the condition caused by excessive quantities of thyroid hormones.\"
[Dorland\'s Illustrated Medical Dictionary]{.smallcaps} 1711 (28th ed.
1994) \[hereinafter [Dorland\'s]{.smallcaps}\].
\"Hy***per***thyroidism\" is \"a condition caused by excessive
production of ionated thyroid hormones and marked by goiter, tachycardia
or atrial fibrillation, widened pulse pressure, palpitations,
fatigability, nervousness and tremor, heat intolerance and excessive
sweating, warm, smooth, moist skin, weight loss, muscular weakness,
hyperdefecation, emotional lability, and ocular signs.\"
[Dorland\'s]{.smallcaps} at 802 (emphasis added).) In a July 1975 VA
examination report, the examiner noted that the appellant \"has obvious
hy***per***thyroidism historically, clinically, and by lab studies.\" R.
at 72 (emphasis added). After the appellant was hospitalized for 51 days
at Brooke AMC, an August 1975 discharge summary included an examiner\'s
note that \"\[t\]he patient was in his usual state of health until
approximately one year prior to admission when he began to note weight
loss despite adequate food intake, approximately 19 pounds over the past
year\"; for approximately two months prior to admission, he had
experienced \"the onset of increasing nervousness \[and\] pounding heart
beat\"; and for approximately six months before hospital admission he
had experienced heat intolerance; the examiner also stated that the
appellant\'s mother had experienced \"\'thyroid trouble\'\". R. at 56.
The discharge summary diagnosed the appellant as having
\"\[h\]y***per***thyroidism \[(emphasis added)\], Graves\' disease\",
which was treated with Iodine-131 (I-131). R. at 58. (I-131 is \"a
radioactive isotope of iodine . . . most commonly used in the treatment
of both benign and malignant disease of the thyroid gland.\"
[Dorland\'s]{.smallcaps} at 1045, and Graves\' disease is a \"disorder
of the thyroid . . . characterized by at least two of the following:
\[H\]y***per***thyroidism, goiter, and exophthalmos.\"
[Dorland\'s]{.smallcaps} at 482 (emphasis added).)

In a November 1975 service medical record (SMR), the examiner noted that
the appellant had symptoms of face puffiness, decreased energy,
constipation, and dry skin and stated that he had hy***po***thyroidism
secondary to his I-131 medication (R. at 185); that same month an
examiner diagnosed the appellant as \"\[f\]ound to be hy***po***thyroid
now as suspected\" (R. at 186) (emphasis added). (It is unclear whether
the same examiner made both sets of notes.) (\"Hy***po***thyroidism\" is
\"deficiency of thyroid activity. In adults, it is most common in women
and characterized by decrease in basal metabolic rate, fatigue and
lethargy, \[and\] sensitivity to cold.\" [Dorland\'s]{.smallcaps} at 811
(emphasis added).) A provisional diagnosis in January 1976 on an SMR
consultation sheet noted that he had hy***po***thyroidism, secondary to
his hy***per***thyroid treatment. R. at 194. An SMR entry in early
February 1976 reported symptoms of lethargy and fatigue and that the
appellant was on \"Synthroid\". (Synthroid is \"a preparation of
levothyroxine sodium\" that is prescribed for \"reduced or absent
thyroid function\". Dorland\'s at 918, 1649.) *Ibid*. Also, in a
February 1976 SMR, an examiner checked the \"abnormal\" box next to the
clinical evaluation for \"endocrine system\" (R. at 199) and indicated
that the appellant\'s hy***per***thyroidism was \"controlled\" and that
he was currently diagnosed as having hy***po***thyroidism (R. at 200). A
March 1976 SMR indicated that his thyroid studies yielded results within
normal limits. R. at 217. That same month, he submitted to a VARO a VA
compensation and pension (C&P) application for \"\[h\]yperactive thyroid
condition \[with\] residuals of nuclear radiation\". R. at 242. A May
1976 VA C&P examination report of the appellant included a diagnosis of
\"normal\" for the general medical examination except for
hy***po***thyroidism. R. at 254-55.

In a June 17, 1976, RO decision, the decision being collaterally
attacked in this appeal, the RO considered the appellant\'s claim for
service connection for \"hyperactive thyroid condition \[with\]
residuals of nuclear radiation\", and \"determine\[d\] that the evidence
of record indicate\[d\] that his thyroid condition pre\[\]existed
service and was not aggravated, but actually improved in service with
treatment\", and denied service connection for hy***po***thyroidism. R.
at 259. On July 7, 1976, he submitted a statement regarding that June
1976 RO decision and VA construed it as a Notice of Disagreement (NOD);
he stated that his hy***po***thyroidism had begun in service and that he
\"would like this rating appealed\" because his hy***po***thyroidism
medication (apparently referring to Synthroid) was expensive. R. at 261.
The RO issued a Statement of the Case (SOC) in July 1976 concluding that
\"service connection for hy***po***thyroidism is not established\" and
citing as pertinent laws and regulations only 38 U.S.C. §§ 310 and 331
and 38 C.F.R. § \"3.306(B)\", and describing that regulation as
providing that \"\[a\]ggravation may not be conceded where the
disability underwent no increase in severity during service on the basis
of all the evidence of record pertaining to the manifestations of the
disability prior to, during\[,\] and subsequent to service.\" R. at 266
(emphasis added). It appears that the appellant did not submit a
Substantive Appeal as to the June 1976 RO decision. R. at 272.

In September 1981, the appellant sought to have his claim reopened (R.
at 280); however, that same month, the RO confirmed its previous denial
of service connection for the appellant\'s hy***po***thyroidism (R. at
283). A year later, he again notified the RO that he wanted to have his
claim reopened (R. at 207), and, subsequently, a January 1983 decision
confirmed the previous decision declining to reopen his claim (R. at
302). After he submitted an NOD, the RO stated in a March 1983 SOC that
the claim to reopen had been denied because, inter alia, there was \"no
evidence that the condition was aggravated beyond the natural progress
of the disease by the appellant\'s service.\" R. at 310-11. In the SOC,
the RO cited specifically to \"38 C.F.R. § 3.306(B)(1)\", describing
that regulation as providing that \"\[t\]he usual effect of medical and
surgical treatment in service, having the effect of ameliorating
diseases or other conditions incurred before enlistment, including
poorly functioning parts or organs, will not be considered service
connected unless disease or injury is aggravated in service.\" In an
April 1983 Substantive Appeal, the appellant stated that he \"was in
worse medical condition when \[he\] left the service\" after being
\"free of any major d\[i\]sease most of \[his\] life up until \[his\]
internment in the military.\" R. at 313.

In an October 1983 BVA hearing, the appellant testified under oath that
he disagreed with the previous characterization of his symptoms; he
stated that he had experienced symptoms of nervousness because military
service \"was a big jump\" for him and that he had experienced heat
intolerance because of a heating situation in his apartment. R. at 364.
In response to questions by the hearing officer, he agreed that his two
main contentions were (1) that his SMRs mischaracterized the facts and
(2) that he had not had a thyroid condition before service. R. at 366. A
December 1983 BVA decision remanded to the RO his claim for service
connection to obtain his complete medical and military personnel records
and to schedule him for a VA examination \"to determine the nature,
extent, and current diagnosis of all residuals of treated
hy***per***thyroidism.\" R. at 381-82 (emphasis added). The RO then
issued, in October 1984, a Supplemental SOC (SSOC) explaining that a
previous RO decision issued that same month (*see* R. at 446-47) had
denied service connection for a thyroid condition on the ground that
medical treatment reports \"confirm the history, taken at the time, of
symptomatology of the thyroid condition pre\[\]existing entry into
military service\[; n\]o aggravation beyond a normal progression of the
disease was shown.\" R. at 385.

An October 1984 RO decision denied service connection for
hy***po***thyroidism and stated that the appellant was \"euthyroid at
time of separation.\" R. at 447. (\"Euthyroid\" indicates the presence
of \"normal thyroid gland function.\" [Dorland\'s]{.smallcaps} at 588.)
A March 1985 BVA decision denied service connection for \"residuals of
treated hy***per***thyroidism\" because new and material evidence had
not been submitted to reopen the June 1976 RO decision. R. at 458-59
(emphasis added). On reconsideration in March 1986, the Board confirmed
that decision. R. at 484. In an October 1988 letter to the RO, the
appellant requested that his service-connection claim be reopened and
submitted letters from laypersons regarding his good health at the time
of enlistment. R. at 486, 490-96. In January 1989, the RO determined
that these letters were not \"sufficient\" to reopen his claim. R. at
500. In a February 1991 SOC, the RO further explained that because
\"standard medical textbooks indicate that although the clinical
presentation of hy***per***thyroidism may be highly variable, it
frequently follows a clear pattern, \[and\] the statements of the
various persons, including the \[appellant\]\'s parents, that he had no
serious or unusual illnesses before service, do not present any new
facts not already considered.\" R. at 520 (emphasis added).

In April 1991, the RO received from the appellant a copy of an October
1990 letter from Dr. Francis Greenspan to the appellant and a copy of a
letter from Dr. Jose Galindo, Jr., to Dr. Marvin Siperstein, Chief of
the Metabolic Section at a VA Medical Center. R. at 527-30. Dr. Galindo
discussed hy***per***thyroidism generally, including an observation that
hy***per***thyroidism may stem from \"some type of stress be it
emotional or physical\", but stated that he could not \"really comment
on your case\", and he apparently never examined the appellant. R. at
527. Dr. Greenspan examined the appellant and diagnosed him as having
\"Graves\' disease, treated with radioactive iodine with excellent
result\" and \"\[p\]ost\[\]radiation hy***po***thyroidism\"; he noted:
\"I think there is no question that this patient developed his Graves\'
disease while he was in the service; he was treated extremely well, has
had an excellent response, but will require I-thyroxine therapy and
periodic monitoring of blood tests for the rest of his life.\" R. at
528-29 (emphasis added). Dr. Greenspan further stated that the appellant
had \"a strong genetic pre‑disposition to the disease, as evidenced by
the positive family history\" in his background. R. at 529.

In a June 1991 decision, the RO confirmed the October 1984 RO denial of
service connection; the RO noted that \"\[t\]he opinion \[of Dr.
Greenspan\] that the \[appellant\]\'s condition began in service is not
supported by the facts\" because the appellant had himself stated in
June 1975 that he had a \"one\[-\]year history of progressive
symptoms\". R. at 550. At a February 1992 BVA hearing, the appellant
testified under oath that he had been in good health before entering
service. R. at 604. He agreed that he had acquired hy***po***thyroidism
because of the medication he was taking for his hy***per***thyroidism.
R. at 606. He stated that in August 1975 the doctors had \"manipulated\"
his symptoms at the time that he was diagnosed as having Graves\'
disease; he stated that he had intentionally lost 20 pounds, that any
nervousness he had had was related to entering service for the first
time, that he had not had a pounding heartbeat, and that his intolerance
to heat manifested itself because he had been situated too close to a
heating vent. R. at 613.

In May 1993, the Board denied service connection for a thyroid disorder.
R. at 631. The Board noted that \"the medical evidence from \[the
appellant\'s\] period of active\[-\]duty\[-\]for\[-\]training service
that is available clearly demonstrates that his thyroid disorder had
been manifested prior to his entrance into
active\[-\]duty\[-\]for\[-\]training service.\" R. at 628. The appellant
appealed to this Court, and in May 1995 the parties filed a joint motion
for remand; they requested that the Court vacate the May 1993 BVA
decision and remand for \"further development and readjudication of the
\[a\]ppellant\'s claim\". R. at 636. The Court, by an order of the Clerk
of the Court, granted the joint motion that same month. R. at 648. In
October 1995, the Board (1) reopened the appellant\'s claim for service
connection for a thyroid disability after concluding that new and
material evidence had been presented in the form of statements regarding
his good health before service and medical statements from two private
physicians, (2) remanded the case to the RO to afford him a
comprehensive medical examination, and (3) directed the RO, following
the examination, to review his service-connection claim in light of the
entire record. R. at 656-58.

In a January 1996 VA medical report, the examiner, Dr. Siperstein,
stated that the appellant was \"both chemically and clinically
euthyroid\" with his medication. R. at 666. He further noted (1) that
\"\[f\]rom the history obtained on admission to \[Brooke AMC\], there is
little question that the patient in fact did have some of the typical
symptoms of hy***per***thyroidism prior to his induction into the
service\" (R. at 667 (emphasis added)) and (2) that the appellant\'s
hy***per***thyroid condition \"clearly did worsen to the point of being
clinically apparent shortly after induction into the Army\" (R. at 668).
Dr. Siperstein also stated that \"as a direct result of the iodine
treatment the appellant became hy***po***thyroid, . . . remained
hy***po***thyroid for the past 20 years and no doubt will continue to be
hy***po***thyroid for the rest of his life\" and concluded that
\"\[t\]here is no other reasonable explanation for the patient\'s 20
years of hy***po***thyroidism other than the treatment, albeit
appropriate, which he received during his Army service.\" R. at 668
(emphasis added). Dr. Siperstein opined that \"by the usual standards in
such cases\[, the appellant\] has a service\[-\]connected disability,
i.e., hy***per***thyroidism worsening to the point of diagnosis in
service, plus a condition induced by treatment in service, i.e.
hy***po***thyroidism.\" R. at 669 (emphasis added).

A February 1996 RO decision awarded the appellant service connection for
hy***po***thyroidism that \"existed before service but was aggravated by
service\" and assigned a 10% rating, effective from October 24, 1988,
the date that his claim was reopened. R. at 673-75. In August 1996, the
BVA Senior Deputy Vice Chairman denied the appellant\'s May 1996
construed motion for reconsideration of (1) the March 1985 BVA decision
and (2) the March 1986 BVA reconsideration decision that had concluded
that new and material evidence had not been presented to reopen the
appellant\'s claim for service connection for residuals of treated
hy***per***thyroidism. R. at 689.

In an April 1997 decision, the RO concluded that there was no CUE in the
June 1976 RO decision; the appellant had argued, inter alia, that the
decision contained CUE because the RO had failed to consider the
presumption of soundness, aggravation, and all the evidence that was in
the record at that time. R. at 699. On appeal again, the Board found in
April 1999 that there was no CUE in the June 1976 RO decision and that
the appellant had essentially argued against \"how the RO weighed the
extant evidence\". R. at 819. The appellant appealed the BVA decision,
and on November 30, 2000, the Court vacated the April 1999 BVA decision
and remanded the CUE matter because the Board\'s deficient analysis was
\"not in compliance with either 38 U.S.C. § 7104(d)(1) or §
7261(a)(3)(A)\"; the Court concluded, inter alia, (1) that the lay
reports submitted by the appellant did not demonstrate the preexistence
of hy***po***thyroidism, (2) that there was no medical evidence in the
record showing that the preexistence of hy***per***thyroidism \"implies
the preexistence\" of hy***po***thyroidism, and (3) that the Board\'s
statement of reasons or bases was inadequate. *Hines v. Gober* (*Hines
I* ), No. 99-1379, 2000 WL 1771071, at \*4 (Vet. App. Nov. 30, 2000)
(single-judge decision).

In the August 2001 BVA decision here on appeal, the Board determined
that the 1976 RO decision did not contain CUE. R. at 30. The Board
reviewed pertinent regulations in effect as of June 1976. R. at 15-17.
Answering the appellant\'s arguments, the Board then concluded the
following: (1) VA\'s failure to provide an examination was not CUE
because the duty to assist cannot constitute grounds for CUE; (2) the
RO\'s failure to consider the May 1975 VA examination was not CUE
because the appellant did not specifically assert how the RO\'s decision
would have been different but for that error; and, because prior to
February 1990 the RO was not required to summarize the evidence reviewed
in making a decision, any omission of evidence from the record before
February 1990 did not demonstrate failure to consider evidence of record
(citing *Eddy v. Brown*, 9 Vet.App. 52 (1996)); (3) the RO\'s finding
that hy***per***thyroidism preexisted service was not CUE because the
presumption of soundness did not apply to the appellant under 38 C.F.R.
§ 3.1(d), 3.6(a), or 3.304(b) (1975); and (4) a claim that the \"RO
improperly relied on lay accounts of pre\[\]service symptoms to
establish that hy***per***thyroidism preexisted service, based on Court
precedent, cannot constitute a valid CUE theory; R. at 19-24 (emphasis
added). The Board then determined that the appellant had presented a
valid CUE claim regarding his \"allegation that the RO had erroneously
based its denial of service connection for hy***po***thyroidism on the
circumstances surrounding the history and treatment of his
hy***per***thyroidism \[and that he\] ha\[d\] sufficiently raised the
assertion that the RO did not have the correct facts before it when it
made its decision.\" R. at 24 (emphasis added). The Board nonetheless
concluded that, under 38 C.F.R. § 3.306(b)(1) as in effect in 1975, the
\"usual effects\" of medical/surgical treatment in service that
ameliorate disease or other conditions incurred before enlistment do not
equate to service connection unless the disease/injury is otherwise
aggravated by service, 38 C.F.R. § 3.306(b)(1) (1975), and that the RO
in 1975, \"could arguably\", and, apparently, properly, have denied
service connection on the basis of that regulation. R. at 27.

**II. Contentions on Appeal**

In his brief, the appellant contends that the Court should reverse as
clearly erroneous the August 2001 BVA decision or, in the alternative,
vacate that decision and remand the matter because the Board did not
provide an adequate statement of reasons or bases. Brief (Br.) at 7. He
argues that the Board failed to consider 10 U.S.C. § 1219 as implemented
by 38 C.F.R. § 3.304(b)(3) regarding \"signed statements of appellants
relating to the origin, or incurrence of any disease or injury made in
service\"; he contends that statements made against the interest of an
appellant cannot be considered. Br. at 12. In addition, he states that
\"there was otherwise no competent medical evidence that existed in the
record that the appellant had a preexisting thyroid condition.\" Br. at
11-12. The appellant asserts that, in consideration of these factors,
there was CUE in the June 1976 RO decision that denied service
connection for hy***po***thyroidism, which had first been diagnosed
while the appellant was in service. Br. at 12.

The appellant characterizes the Board\'s § 3.306(b)(1) \"usual effects\"
discussion as \"convoluted\" and asserts that hy***per***thyroidism and
hy***po***thyroidism are distinct conditions that are assigned
\"independent\" rating codes under 38 C.F.R. § 4.119, Diagnostic Code
(DC) 7900, 7903 (2003). Br. at 12. He argues that if the Board had
properly applied the presumption of soundness (38 C.F.R. § 3.304(b)(3)),
the Board would not have reached the \"usual effects\" argument because
except for the appellant\'s own statements regarding his symptoms, the
record does not include any other evidence that his
hy***per***thyroidism preexisted service. Br. at 13. Moreover, he
maintains that even if the evidence suggested preexisting
hy***per***thyroidism, \"there is no competent, independent medical
evidence in the record that the \'usual effects\' of
hy***per***thyroidism treatment lead to hy***po***thyroidism.\" Br. at
13 (emphasis added). Furthermore, if hy***per***thyroidism preexisted
service and hy***po***thyroidism is a \"usual effect\" of that
condition, CUE exists because the appellant was not awarded service
connection for hy***po***thyroidism in 1975 and 1976 based on
aggravation of that condition, even though his February 1976 separation
examination report indicated that he was on medication to control that
condition. Br. at 14. The appellant further argues that even though a
diagnosis in a March 1976 medical record indicated that his thyroid
testing revealed a \"normal\" condition that does not show that his
condition was cured because both hy***per***thyroidism and
hy***po***thyroidism are chronic diseases under 38 C.F.R. § 3.309(a).
*Ibid.*

In the alternative, the appellant contends that the Board decision
should be vacated and the matter remanded for the reasons stated above
and because under *Colvin v. Derwinski*, 1 Vet.App. 171, 175 (1991), the
Board decision \"should not have been made in the absence of
independently obtained medical evidence\" (Br. at 14-15), and he
challenges the adequacy of the Board\'s statement of reasons or bases
pursuant to 38 U.S.C. § 7104(d)(1) (Br. at 15).

The Secretary argues initially that the appellant has abandoned, by not
raising on appeal, certain CUE claims \_ including hy***po***thyroidism
as a chronic disease, failure to rate skin and heart conditions, failure
to consider a medical record from May 1975, and failure to provide an
examination. Br. at 2. The Secretary asserts that the Court should
affirm the August 2001 BVA decision because that decision properly
concluded that (1) the June 1976 RO decision did not contain CUE, (2)
the appellant\'s hy***per***thyroidism preexisted service, (3) the
presumption of soundness did not apply because the appellant was not a
\"veteran\", and (4) the June 1976 decision\'s denial of service
connection for hy***po***thyroidism was not an \"undebatable\" error,
and that, therefore, the Board\'s decision was not \"arbitrary,
capricious, an abuse of discretion or otherwise not in accordance with
law\". Br. at 6,10. As to the appellant\'s alternative argument, the
Secretary argues that the Board provided an adequate statement of
reasons or bases. *Ibid.*

The Secretary also contends (1) that the Board reviewed the evidence
before the RO at the time of its June 1976 decision, including the
appellant\'s SMRs, a May 1976 VA examination report, and the
appellant\'s description of his symptoms as set forth in the August 1975
discharge summary (Br. at 7); and (2) that, despite the Court\'s holding
in its November 2000 decision regarding lay observations as unable to
establish symptoms, at the time of the June 1976 RO decision, \"there
was no law precluding the RO from using \[the a\]ppellant\'s statements
to find that his condition preexisted service\" (Br. at 8). The
Secretary asserts that the RO in June 1976 \"had ample, and allowable
evidence to support its determination that \[the a\]ppellant\'s thyroid
condition preexisted service\", and that the appellant\'s argument that
the RO erred by considering his statements in concluding that he had
preexisting hy***per***thyroidism cannot be the basis of CUE because it
is a disagreement about weighing the evidence. Br. at 8-9

The Secretary further contends that none of the evidence before the RO
in June 1976 \"indicated that \[the a\]ppellant\'s hy***per***thyroidism
was incurred in or aggravated by service\"; the Secretary notes that
medical records made after the appellant was treated for
hy***per***thyroidism do not address that condition and that the
appellant\'s separation examination report described his
hy***per***thyroidism as \"\'controlled\'\" while stating that he had
hy***po***thyroidism. Br. at 9. Regarding § 3.306(b)(1), the Secretary
contends that hy***per***thyroidism existed preservice and became
\"controlled\" with I-131 treatment, and that the November 1975 SMR
showed that the appellant was \"hy***po***thyroid as suspected\", all of
which supports the \"usual effects\" of use of I-131. Br. at 11. As to
the appellant\'s argument that his statement concerning his preservice
symptoms cannot be used to show that he had hyperthyroidism prior to
service, the Secretary points out that there is no signed statement by
the appellant against his interest and that under *Harris v. West*, 203
F.3d 1347, 1351 (Fed. Cir. 2000), statements from an appellant can serve
as medical evidence. Br. at 13. As to the appellant\'s argument that the
1976 RO erred by denying service connection for hy***po***thyroidism
based on preservice hy***per***thyroidism, the Secretary asserts that it
is \"debatable\" because the record in June 1976 showed that I-131
hy***per***thyroidism treatment led to hy***po***thyroidism and the RO
decision discussed a \"hyperactive thyroid condition with residuals of
nuclear radiation\". Br. at 15. Finally, the Secretary argues against a
remand on reasons-or-bases grounds because the Board\'s decision was
\"complete and articulate with regard to each of its findings\". Br. at
15-16.

In his reply brief, the appellant essentially reiterates the arguments
made in his principal brief. In answer to a question from the Court
during oral argument on January 15, 2004, the Secretary filed a response
stating that in 1975 hy***po***thyroidism in remission warranted a
zero-percent rating; he cites to 38 C.F.R. § 4.119, DC 7903 (1975).

**III. Analysis**

As an initial matter, the Court notes that the appellant did not raise
in his brief the previously submitted CUE claims regarding
hy***po***thyroidism as a chronic disease, failure to rate skin and
heart conditions, failure to consider a medical record from May 1975,
and failure to provide an examination. Therefore, the Court considers
these arguments abandoned on appeal. *See Green (Doris) v. Brown*,
10 Vet.App. 111, 114 (1997). The Court also notes that, although the
Board discusses the application of the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (R. at 3-4), the VCAA
does not apply to CUE claims. *See Livesay v. Principi*, 15 Vet.App. 165
(2001) (en banc).

Although the appellant submitted an NOD as to the June 17, 1976, RO
decision, he did not submit a Substantive Appeal after receiving the
July 1976 SOC; we will therefore assume, arguendo (*but see* the
discussion at the end of the Analysis regarding the adequacy of that
SOC), for the purpose of the CUE claim on appeal, that the June 1976 RO
decision became a final decision. *See* 38 U.S.C. § 4005(c) (1970); 38
C.F.R. §§ 3.104, 19.118, 19.153 (1975); *Cuevas v. Principi*, 3 Vet.App.
542, 546 (1992). Such a final decision is a prerequisite for a CUE
collateral attack. *See Norris (Robert) v. West*, 12 Vet. App. 413, 422
(holding that prior RO decision that had not become final was not
subject to CUE collateral attack). An RO decision that has become final
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), *infra*); 38 C.F.R. § 3.105(a) (2000); *see also* 38 U.S.C.
§§ 5108, 7105(c); *cf.* 38 C.F.R. § 3.400(q)(2) (2000) (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). Section 3.105(a) of title
38, Code of Federal Regulations, 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). The CUE claim presented here is a collateral
attack on a final RO decision. *See* *Crippen v. Brown*, 9 Vet.App. 412,
418 (1996); *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*). \"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.\"
*Russell*, 3 Vet.App. 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, 245 (1994). Moreover,
a CUE claim 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\").

*Russell* also established that, as a threshold matter, a CUE claim
cannot be raised for the first time before this Court but that the claim
must have been the subject of a final prior BVA adjudication. *Russell*,
3 Vet.App. at 314-15. Furthermore, when the Court considers a Board
determination that there was no CUE in a prior final RO decision, the
Court\'s review is limited to deciding whether that Board conclusion is
\"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law\", 38 U.S.C. § 7261(a)(3)(A); *see Dobbin v.
Principi*, 15 Vet.App. 323 (2001) (discussing arbitrary and capricious
standard as applied to CUE claims); *Damrel*, *supra*, 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. 377, 382 (1996); *see
also* *Russell*, 3 Vet.App. at 315; *Eddy v. Brown*, 9 Vet.App. 52, 57
(1996). The Board\'s written statement of reasons or bases must address
its findings and conclusions on all material issues of fact and law
presented on the record and must be adequate to enable an appellant to
understand the precise basis for the Board\'s decision, as well as to
facilitate review in this Court. *See* *Allday v. Brown*, 7 Vet.App.
517, 527 (1995); *Gilbert v. Derwinski*, 1 Vet.App. 49, 56-57 (1990).

In its decision, the Board, in essence, conceded one of the errors
asserted by the appellant as to the 1976 RO decision but found that the
1976 RO decision could have had another, unstated basis for not awarding
service connection for hy***po***thyroidism (R. at 257, 259). That basis
was the application of the \"usual effects\" clause in 38 C.F.R. §
3.306(b)(1), which provided in 1976 as to aggravation of a preexisting
condition:

> \(1\) The usual effects of medical and surgical treatment in service,
> having the effect of ameliorating diseases or other conditions
> incurred before enlistment, including postoperative scars, absent or
> poorly functioning parts or organs, will not be considered service
> connected unless the disease or injury is aggravated by service.

38 C.F.R. § 3.306(b)(1) (1975).

Specifically, the Board reasoned:

> In denying service connection for hy***po***thyroidism, the RO
> appeared to rely on the facts pertaining to hy***per***thyroidism and
> its existence prior to service. It\'s \[sic\] findings revolved around
> a discussion of the pre\[\]service symptoms of hy***per***thyroidism.
> The RO went on to use its findings that the \"thyroid condition\" or
> hy***per***thyroidism preexisted and was not aggravated by service to
> justify its denial of hy***po***thyroidism.
>
> The above rationale, viewed in a vacuum, could potentially be viewed
> as error, insofar as the RO appeared to rely on the finding that one
> disorder (hy***per***thyroidism) preexisted service in order to deny
> service connection for another separate disorder,
> hy***po***thyroidism, and implicitly conclude that it too preexisted
> service. ***The Board agrees that such a determination would be
> erroneous.***
>
> However, it is debatable as to whether this was in fact the basis of
> the RO\'s denial of service connection of hy***po***thyroidism in
> light of the evidence and regulations of record which indicate another
> possible valid basis of the RO\'s denial. *Russell, supra*. That is,
> the evidence and regulations of record, read in conjunction with the
> rationale of the June 1976 decision, leaves it open to debate ***as to
> whether the RO***, rather than finding that hy***po***thyroidism
> preexisted service, ***treated the disability as a \"usual effect\" of
> treatment of the claimed hyperactive thyroid condition.***
>
> First, the issue in the June 1976 rating decision was service
> connection for a \"***hyper***active thyroid condition with *residuals
> of nuclear radiation*.\" (emphasis added).
>
> Second, \[SMR\]s consistently documented that hy***po***thyroidism was
> secondary to I-131 treatment for hy***per***thyroidism.
>
> Third, \[SMR\]s document that the veteran\'s hy***per***thyroidism
> resolved with treatment.
>
> Fourth, extant regulations provided that the ***usual effects*** of
> medical and surgical treatment in service, having the effect of
> ameliorating disease or other conditions incurred before enlistment,
> including postoperative scars, absent or poorly functioning parts or
> organs, will not be considered service connected unless the disease or
> injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1)
> (1975) (emphasis added).
>
> The above demonstrates that it is debatable ***as to whether the RO
> based its denial*** on the erroneous determination that
> hy***po***thyroidism preexisted service, or that the RO committed
> error in denying service connection for hy***po***thyroidism based on
> its finding that hy***per***thyroidism preexisted and was not
> aggravated by service (i.e., that there is no rational connection
> between the determination that hy***per***thyroidism preexisted
> service and the denial of hy***po***thyroidism).
>
> It is debatable because it could be argued, based on the above-listed
> evidence, ***that the RO decision was based*** on a finding that the
> veteran\'s hy***per***thyroidism preexisted and was not aggravated by
> service, and that service connection for hy***po***thyroidism ***was
> denied*** based on that fact that it was a \"usual effect\" of the
> treatment of hy***per***thyroidism (pursuant to section 3.306(b)(1)),
> rather than a preexisting disease that was not aggravated by service.
>
> ***This interpretation of the RO\'s determination*** is supported by
> its framing of the issue as being service connection for a hyperactive
> thyroid condition *with residuals of nuclear radiation*, and by its
> determination that the *thyroid condition*, as opposed to the
> residuals of nuclear radiation (which the \[SMR\]s have noted as being
> hypothyroidism), preexisted service.
>
> Further, such a rationale is not without support in the available
> evidence of record. In this regard, the Board notes that following
> treatment for hypothyroidism, the \[appellant\] had been found to be
> hy***po***thyroid, \"as suspected.\" Further, \[SMR\]s specifically
> document on multiple occasions that hy***po***thyroidism was secondary
> to I-131 treatment of hy***per***thyroidism.
>
> In sum, the Board finds that the veteran\'s claim that the RO
> erroneously relied on the determination that hy***per***thyroidism
> preexisted service to deny service connection to hy***po***thyroidism
> does not constitute CUE.
>
> This is because the evidence indicates, at the very least, the
> possibility ***that the RO only found*** the veteran\'s
> hy***per***thyroidism, not hy***po***thyroidism, preexisted and was
> not aggravated by service. Further, pursuant to the extant regulation,
> section 3.306(b)(1), the RO could arguably have denied service
> connection for hy***po***thyroidism because it was a usual effect of
> the treatment for the preexisting thyroid condition that was not
> aggravated by service.
>
> Thus, the Board finds that the RO\'s June 1976 . . . decision leaves
> open for the debate as to whether its denial of service connection for
> hy***po***thyroidism based on a determination that
> hy***per***thyroidism preexisted service was CUE. Therefore, this
> theory of CUE must fail because the alleged error is debatable.
> *Russell, supra*.
>
> The Board stresses that it is not making its own finding or conclusion
> that hy***po***thyroidism was or was not a usual effect of treatment
> for hy***per***thyroidism, or that the evidence otherwise demonstrated
> that it preexisted service. This would be impermissible. *Colvin* \[,1
> Vet.App. at 175\]. The Board merely finds that ***the evidence
> (including competent evidence) supports another interpretation of the
> RO\'s denial that would not be erroneous, i.e., be justified by the
> regulations.*** As a result, the veteran\'s alleged error is
> debatable.

R. 24-27 (boldface italic emphasis added). The foregoing emphasized
language shows that the Board found that the RO might actually have
based its 1976 denial on § 3.306(b)(1).

First, we must accept that the Board\'s finding that except for the
possibility of the application of the § 3.306(b)(1) \"usual effects\"
clause the RO would have erred in \"rely\[ing\] on the finding that one
disorder (hy***per***thyroidism) preexisted service in order to deny
service connection for another separate disorder, hy***po***thyroidism,
and implicitly conclud\[ing\] that it too preexisted service.\"
R. at 25. This Court cannot controvert findings made by the Board that
are not adverse to the appellant. *See* 38 U.S.C. § 7261(a)(4) (as
amended by theVeterans Benefits Act of 2002 Pub. L. No. 107-330, § 401,
116 Stat. 2820, 2832 (Dec. 6, 2002) (providing for Court to reverse or
set aside only findings of fact \"adverse to the claimant\")); *Roberson
v. Principi*, 17 Vet. App. 135, 138 (2003) (per curiam order); *see
also* *Nolen v. Gober*, 222 F.3d 1356, 1360-1361 (Fed. Cir. 2000)
**(holding that once Secretary determined that claim was well grounded**
it was improper for this Court to reconsider matter). Moreover, we hold
that the conceded RO error (using the preexistence of
hy***per***thyroidism to deny service connection for
hy***po***thyroidism) had it not been committed, and in the absence of a
viable application of the § 3.303(b)(1) \"usual effects\" theory, would
have resulted in a changed outcome -- that is, service connection for
hy***po***thyroidism would have been awarded because there was no
evidence as of 1976 that ***that*** condition had preexisted the
appellant\'s service. *See Russell, supra; see also Crippen*, *Damrel,*
and *Fugo,* all *supra*. Indeed, this was one of the holdings in the
Court\'s November 30, 2000, decision, *Hines I*, 2000 WL 1771071, at
\*4, and that determination is the law of the case. *See Augustine v.
Principi*, 343 F.3d 1334, 1339 (Fed. Cir. 2003) (law-of-the-case
doctrine applies to legal issue on question \[that\] has actually been
decided \"in earlier stage of the litigation\" on which \"final
judgment\" has been entered); *Intergraph v. Intel*, 253 F.3d 695, 699
(Fed. Cir. 2001) (under law-of-the-case doctrine, court of appeals is
generally \"bound by findings\" \"made by court of appeals in a prior
appeal of the same case\") (quoting *Ellard v. Ala. Bd. of Pardons and
Paroles*, 928 F.3d 378, 381 (11th Cir. 1991)).

Before proceeding further we reject the appellant\'s argument that if
the RO and the Board had properly applied 38 C.F.R. § 3.304(b)(3)
(1975), regarding veterans\' signed statements that contradict the
presumption of soundness, then the \"usual effects\" argument would
never have to be reached. Basic entitlement to compensation for veterans
for service-connected disabilities in 1976 derived from 38 U.S.C. § 310
(now § 1110), which provided in pertinent part:

> For disability resulting from personal injury suffered or disease
> contracted in line of duty, or for aggravation of a preexisting injury
> suffered or disease contracted in line of duty, in the ***active
> military, naval, or air service*** . . . the United States will pay to
> any ***veteran*** thus disabled . . . compensation as provided in this
> subchapter . . . .

38 U.S.C. § 310 (1970) (emphasis added). The term \"veteran\" was
defined, in relevant part, as \"a person who served in the active
military, naval, or air service.\"  38 U.S.C. § 101(2); *see also*
38 C.F.R. § 3.1(d) (1975). The term \"active military, naval, or air
service\" was defined to include, inter alia, \"any period of active
duty for training ***during which*** the individual concerned was
***disabled or died from a disease or injury incurred or aggravated in
line of duty.**\"* 38 U.S.C. § 101(24) (emphasis added); *see also*
38 C.F.R. § 3.6(a) (1975). An individual who has served only on active
duty for training must establish a service-connected disability in order
to achieve veteran status. *See Paulson v. Brown*, 7 Vet.App. 466, 470
(1995); *see also* *Mercado-Martinez v. West*, 11 Vet.App. 415, 419
(1998). Under 38 U.S.C. § 311 (now § 1111), a veteran was afforded a
presumption of sound condition upon entry into service, except for any
defects noted at the time of examination for entry into service. In this
case, the appellant was not a \"veteran\" at the time of the RO\'s
adjudication in 1976 because his service was active duty for training
and he had not established a service-connected disability in order to
achieve veteran status. *See Paulson* and *Mercado-Martinez*, both
*supra*. The presumption of soundness thus did not attach, and any
assertion that the 1976 RO failed to apply it cannot constitute CUE.

We thus return to the Board\'s hypothesis that the RO decision denying
service connection for hy***po***thyroidism could reasonably be
interpreted as having been based on a proper application of the \"usual
effects\" clause in § 3.306(b)(1) in 1976. The Board apparently
concluded that the 1976 RO could ***properly*** have found that the
usual effects, that is, hy***po***thyroidism, of the in-service surgical
treatment of the appellant\'s hy***per***thyroidism, which treatment had
the effect of improving the disease that was incurred before service,
should not be considered service connected because the disease was not
\"otherwise aggravated by service\". R. at 26. There are several
problems with this analysis. First, although the Board noted that,
following treatment for hy***per***thyroidism, the appellant\'s SMRs
documented that he had been found to be hy***po***thyroid, \"as
suspected,\" and that the hy***po***thyroidism was secondary to I-131
treatment of hy***per***thyroidism, there does not appear to have been
medical evidence in the record in June 1976 that indicated that the
\"usual effects\" of hy***per***thyroidism treatment was
hy***po***thyroidism. There ***was*** medical evidence that the
***appellant\'s*** hypothyroidism was secondary to the I-131 treatment,
but that does not indicate that it was a \"usual effect\[\]\". In any
event, the 1976 RO decision made no such finding.

Second, even if we accept that hy***po***thyroidism is a usual effect of
hy***per***thyroidism treatment, service connection can still be granted
if the condition is \"otherwise aggravated by service\". 38 C.F.R. §
3.306(b)(1). In this case, it is undisputed on the June 1976 record that
the appellant\'s thyroid condition was aggravated by service. Although
the radiation treatment eliminated his hy***per***thyroid condition, and
it is now established that that treatment probably led to another
condition, hy***po***thyroidism, another disability (*see* R. at 668-69
(Dr. Siperstein\'s January 1996 report)), there was absolutely no
evidence in June 1976 that the appellant had hy***po***thyroidism prior
to service and that it was not incurred in service. Hence, the only
basis for concluding that hy***po***thyroidism was not service connected
would be because it was a § 3.306(b)(1) \"ususal effect\[\]\" of the
radiation treatment. However, as noted, that provision specifically
excepts from its preclusion of service connection \"a disease or injury
otherwise aggravated by service\". 38 C.F.R. § 3.306(b)(1) (1975).

This brings us to the Board\'s discussion of the hypothetical
application of § 3.306(b)(1) by the RO. We hold that that Board
discussion is deficient because it does not explain how that regulation
would apply to the facts before the RO in June 1976. Many pertinent
questions about the potential application of that regulation to the June
1976 evidence of record were not adequately addressed by the Board. For
example, in the words of the regulation, the \"medical treatment in
service\" was for hy***per***thyroidism. The \"usual effect\[\]\" in the
Board\'s hypothesis would be hy***po***thyroidism. Assuming that there
was of record in June 1976 medical evidence on which to base such a
\"usual effects\" determination, how would the last part of the
regulation, \"unless the disease or injury is otherwise aggravated by
service\", be applied to the June 1976 evidence of record? First, what
is the meaning of \"aggravated\" in the \"unless\" clause? Second, at
what point in time must the aggravation have occurred -- at the time of
the treatment, following the treatment, or at separation -- and why?
Third, to what \"disease\" does the \"unless\" clause refer? It is quite
unclear whether it is the condition sought to be \"ameliorated\",
hy***per***thyroidism, or the condition that was considered to be the
\"usual effect\[\]\", hy***po***thyroidism. If the former, then it is
clear from the evidence that the appellant\'s hy***per***thyroidism had
been aggravated by service by the time that his June 1975 treatment
began and it further appears, based on his 51-day period of in-service
hospitalization in June through August 1975 (R. at 56-58), for example,
that this may not have been a temporary flareup but rather an increase
in the severity of his disease that would have continued without the
I-131 treatment then administered. *See Hunt v. Derwinski*, 1 Vet.App.
292, 296 (1991) (noting that presumption of aggravation is not
applicable unless preservice disability underwent increase in severity
during service).

On the other hand, if the \"disease\" referred to in the § 3.306(b)(1)
\"unless\" clause is hy***po***thyroidism, then the Board needs to
address how it would have been reasonable for the RO to decide that
hy***po***thyroidism was not aggravated by service -- in view of the
fact that in 1996 the RO determined, based on essentially the same
evidentiary record that was before the RO in 1976 regarding aggravation
of preexisting hy***po***thyroidism, that hy***po***thyroidism \"was
aggravated by service\" (R. at 263). Further, as to the interpretation
of \"disease or injury\" in the \"unless\" clause, the Board must (1)
address which interpretation is the correct one (including whether
\"disease\" can fairly be read in the alternative, that is, to refer to
aggravation of ***either*** the condition being treated ***or*** the
resulting condition, i.e., \"the usual effects\"), construing
interpretive doubt in favor of the claimant, *see Brown v. Gardner*, 513
U.S. 115, 118 (1994); *Allen (Alfred) v. Brown*, 7 Vet.App. 439, 446
(1995) (en banc); and (2) provide adequate reasons for its interpretive
conclusion by referring to regulatory history, any opinions of the VA
General Counsel, and any policy considerations that the Secretary may
have sought to achieve by the promulgation of § 3.306(b)(1). Because the
Board failed to address these matters, its statement of reasons or bases
for denying the CUE claim was inadequate and remand is required. *See*
38 U.S.C. §7104(d)(1); *Beyrle*, *supra; see also Russell*, *Eddy*, and
*Allday*, all *supra*.

There is a further and perhaps more fundamental deficiency in the
Board\'s hypothesizing about the RO\'s having applied § 3.303(b)(1) in
1976, and that is that the evidence of record strongly suggests that the
RO did ***not*** apply that regulation in 1976. The evidence so
suggesting is the content of the 1976 and 1983 SOCs. After the appellant
filed an NOD in 1976, the RO issued an SOC, which was then, as now,
required to specify the relevant regulations, *see* 38 U.S.C. §
4005(d)(1) (1970) (requiring that agency of original jurisdiction
\"prepare \[an SOC\] consisting of . . . \[, inter alia,\] (A) \[a\]
summary of the evidence in the case pertinent to the issue or issues
with which the disagreement has been expressed; \[and\] (B) \[a\]
citation or discussion of the pertinent law \[and\] regulations\"); 38
C.F.R. § 19.115(b) (1975) (providing that SOC \"shall consist of . .
.\[, inter alia, a\] citation or discussion of the pertinent law, \[VA
r\]egulations or other criteria\"); that 1976 SOC did not refer to,
discuss, or summarize in any way § 3.306(b)(1) (*see* R. at 264-66). In
contrast, the 1983 SOC denying the appellant\'s claim to reopen did
specifically refer to § 3.306(b)(1) and specifically summarized the
\"usual effects\" prohibition (R. at 310). Hence, it appears either that
the 1976 RO did not, in fact, apply § 3.306(b)(1) or that, if it did,
then its SOC is deficient and the June 1976 RO decision might not have
become final, given the appellant\'s timely NOD as to that decision (R.
at 261). *See* *Fenderson v. West*, 12 Vet.App. 119, 132 (1999)
(applying *Holland v. Gober*, 10 Vet.App. 433, 436 (1999) (per curiam
order)). The Board\'s failure to address these matters in connection
with its hypothesis about the application of §3.306(b)(1) by the RO in
June 1976 is an additional reasons-or-bases deficiency requiring remand
under section 7104(d)(1). *See* *Beyrle*, *supra; see also Russell*,
*Eddy*, and *Allday*, all *supra*.

Accordingly, the Court will set aside the Board\'s decision that it is a
reasonable interpretation of the 1976 RO decision that it was based --
and could properly have been based -- on an application of §
3.306(b)(1). If the Board decides, consistent with the foregoing
analysis, that the RO either did not base or could not properly have
based its decision in 1976 on an application of § 3.306(b)(1), then the
Board must find that that RO decision contained CUE in not awarding
service connection for the appellant\'s hy***po***thyroidism. In that
event, the Board must itself, or by remand to an RO, then determine the
proper rating for the hy***po***thyroidism at the time of the June 1976
RO decision and subsequently, until the award of service connection in
February 1996 (R. at 671-75). Such a determination must take into
account the possibility of staged ratings within that 20-year period,
*see Fenderson*, 12 Vet.App. at 126, and provide the appellant with all
appropriate assistance in developing evidence on the rating question.
*See* 38 U.S.C. §5103A; 38 C.F.R. § 3.159(c) (2003); *Proscelle v.
Derwinski*, 2 Vet.App. 629, 631 (1992) (concluding that duty to assist
applied to veteran seeking higher rating for service-connected
disability). Alternatively, if the Board concludes that such an
application did occur and would have been proper, the Board must
determine, and explain its decision fully, whether the 1976 RO decision
is final (as to the effective date assigned to the award of service
connection for the appellant\'s hy***po***thyroidism).

As to the appellant\'s other contentions, the Court has considered them
and does not find that they warrant further review at this time. If
appropriate, the appellant is free to raise any such arguments in the
remand ordered herein. *See* *Best v. Principi*, 15 Vet.App. 18, 20
(2001) (per curiam order) (establishing that because of yet-unknown
factual and legal context in which claim readjudication will occur,
absent \"appropriate circumstances\" Court will often exercise its
discretion not to address each asserted BVA error once it is determined
that VCAA remand is warranted; narrow decision preserves opportunity to
argue claimed errors before Board at readjudication and before Court on
appeal should Board rule adversely). The appellant is, of course, free
to pursue these matters on remand. *See Kay* *v. Principi*, 16 Vet.App.
529, 534 (2002) (\"\[o\]n remand the appellant is free to proffer his
arguments to the Board, and the Board must address them\"); *Fletcher v.
Derwinski*, 1 Vet.App. 394, 397 (1991) (noting that \"\[t\]he Court
expects that the BVA will reexamine the evidence of record, seek any
other evidence \[that\] the Board feels is necessary, and issue a
timely, well-supported decision in this case\").

Finally, regarding our colleague\'s dissenting opinion, we appreciate
his effort to supply an adequate statement of reasons or bases for the
Board\'s decision. This, however, is the Board\'s responsibility, *see*
38 U.S.C. § 7104(d); *Beryle*, *supra*; *see also* *Russell* and *Eddy*,
both *supra*, not the Court\'s. Nor do we know the basis for many of the
implicit assumptions that seem to be made in the dissenting opinion
about the proper interpretation of the § 3.306 regulation.

**IV. Conclusion**

Upon consideration of the foregoing analysis, the record on appeal, and
the submissions of the parties, the Court vacates the August 24, 2001,
BVA decision and remands the matter for expeditious issuance of a
readjudicated decision supported by an adequate statement of reasons or
bases, *see* 38 U.S.C. §§ 1110, 5109A, 7104(a), (d)(1); 38 U.S.C. §
4005 (d)(1) (1970); 38 C.F.R. §§ 3.105(a), 3.306(b)(1), 4.119; 38 C.F.R.
§ 19.115(b) (1975); *Fletcher, supra* \_ all consistent with this
decision and in accordance with section 302 of the Veterans\' Benefits
Improvements Act, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide
for \"expeditious treatment\" for claims remanded by BVA or the Court).
*See Allday*, 7 Vet.App. at 533‑34. On remand, the appellant will be
free to submit additional evidence (as appropriate in a CUE claim) and
argument on the remanded claim, and the Board is required to consider
any such evidence and argument. *See* *Kay*, *supra*. The Court notes
that a remand by this Court and 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 Notice of Appeal with the Court not later than 120 days
after the

date on which notice of the new Board final decision is mailed to the
appellant. *See Marsh v. West*, 11 Vet.App. 468, 472 (1998).

VACATED AND REMANDED.

KRAMER, *Chief Judge*, dissenting: Because, for the reasons set forth
below, I disagree with the majority\'s analysis and conclusion that a
remand is proper in this clear and unmistakable error (CUE) case, I
respectfully dissent.

A prior VA regional office (RO) decision must be reversed or revised
where evidence establishes CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a)
(2003). For CUE to exist either (1) the correct facts in the record were
not before the adjudicator or (2) the statutory or regulatory provisions
extant at the time were incorrectly applied. *See Damrel v. Brown*,
6 Vet.App. 242, 245 (1994). In addition, \"the error must be
\'undebatable\' and of the sort \'which, had it not been made, would
have manifestly changed the outcome at the time it was made.\'\"
*Damrel*, 6 Vet.App. at 245 (quoting *Russell v. Principi*, 3 Vet.App.
310, 313-14 (1992) (en banc)); *see also Bustos v. West*, 179 F.3d 1378,
1380 (Fed. Cir. 1999) (expressly adopting \"manifestly changed the
outcome\" language in *Russell*, *supra*). \"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.\" *Russell*, 3 Vet.App. at 313. That is because, \"even where
the premise of error is accepted, if it is not absolutely clear that a
different result would have ensued, the error complained of cannot be,
ipso facto, clear and unmistakable.\" *Fugo v. Brown*, 6 Vet.App. 40,
43-44 (1993). On appeal of a Board of Veterans\' Appeals (Board or BVA)
determination that there was no CUE in 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 Eddy v. Brown*, 9 Vet.App. 52, 57 (1996);
*Damrel*, 6 Vet.App. at 246; *Russell*, 3 Vet.App. at 315; *see also
Beyrle v. Brown*, 9 Vet.App. 377, 381-84 (1996); *Mason v. Brown*,
8 Vet.App. 44, 52-53 (1995).

In the instant CUE case, based on the evidence of record in June 1976,
the appellant has failed to demonstrate that there could have been CUE
in the June 1976 RO decision to deny service connection for
hyperthyroidism or hypothyroidism. *See Link v. West*, 12 Vet.App. 39,
45 (1998); *Crippen v. Brown*, 9 Vet.App. 412, 420 (1996) (noting that
38 U.S.C. § 5104(b) was added effective February 1, 1990, to require RO
to specify in decision evidence considered and reasons for disposition).

First, there was evidence of record in June 1976 to support the RO\'s
determination that the appellant\'s hyperthyroidism existed prior to
service. *See* Record (R.) at 259 (June 1976 RO decision in which RO had
concluded that thyroid condition, inter alia, preexisted service).
Specifically, **in the August 1975 hospital discharge summary, the
physician had stated that the \"\[then‑p\]resent \[i\]llness\" (R. at
57) had begun one year prior to the appellant\'s June 1975 hospital
admission, i.e., approximately 11 months prior to the appellant\'s entry
into service (*see* R. at 33). *See Crippen*, *supra*; *Fugo*,
6 Vet.App. at 43‑44 (\"**\[I\]f it is not absolutely clear that a
different result would have ensued, the error complained of cannot be,
ipso facto, clear and unmistakable.\"**); *Russell*, 3 Vet.App. at
313‑14 (as to requirements of undebatable error and manifest outcome
change). Moreover,** at the time of the June 1976 RO decision, the RO
was not precluded from using its own medical judgment in making its
determination, and the Court notes that a medical doctor, inter alia,
signed the June 1976 RO decision. *See* R. at 259; *see also* *Colvin v.
Derwinski*, 1 Vet.App. 171, 172 (1991) (to reject expert medical
conclusions, Board must have basis other than its own unsubstantiated
opinion to support its decision); *Berger v. Brown*, 10 Vet.App. 166,
170 (1997) (\"opinions from this Court that formulate new
interpretations of the law subsequent to an RO decision cannot be the
basis of a valid CUE claim\").

**Second, under 38 C.F.R. § 3.306(a) as extant in June 1976, a
preexisting injury or disease could have been service connected if
\"there \[was\] an increase in disability during such service.\"
38 C.F.R. § 3.306(a) (1975). As to any increase in the appellant\'s
hyperthyroidism, it is not entirely clear from the language of
§ 3.306(a) (*see Damrel*, 6 Vet.App. at 245 (error must be undebatable))
whether \"during such service\" meant \"must have endured until
discharge from service\" or \"at any point in time during service.\"
Although perhaps not determinative on this issue because it was not in
existence at the time of the June 1976 RO decision, this Court\'s
caselaw, at a minimum, is instructive as to any ambiguity that may have
existed on this issue. *See Hunt v. Derwinski*, 1 Vet.App. 292, 296-97
(1991) (temporary flare-ups during service of preexisting disease are
not sufficient to be considered in‑service aggravation unless underlying
condition, as contrasted with symptoms, is worsened); R. at 259 (June
1976 RO had concluded that appellant\'s thyroid condition, inter alia,
\"was not aggravated \[by service\], but actually improved in service
with treatment\"). If establishing an increase in disability under
§ 3.306(a) required that the disability endure until discharge from
service, there was evidence of record in June 1976 to support a
determination that the appellant\'s hyperthyroidism had not so endured.
*See* R. at 200 (February 1976 service discharge examination report on
which examiner had indicated, inter alia, that hyperthyroidism was
\"controlled\"); *Fugo* and *Russell*, both *supra*. Even assuming that,
at the time of the June 1976 RO decision, showing an increase in
disability under § 3.306(a) did not require that the disability endure
until discharge from service, the evidence of record in June 1976 was
not necessarily *all* in the appellant\'s favor as to whether a
nonenduring increase had occurred. *See* R. at 138, 142, 166, 169
(treatment notes during appellant\'s in‑service hospitalization
indicating that appellant was out of hospital on passes of varying
lengths, including pass for overnight fishing trip), 173 (discharged
from hospital to duty);** *Crippen*, 9 Vet.App. at 422 (if all evidence
at time of RO decision \"militated in support of the claim,\" that could
be basis for finding CUE in RO\'s denial of claim); *see also Fugo* and
*Russell*, both *supra*.

Third, as to whether the existence of hypothyroidism either was an
aggravation of the appellant\'s hyperthyroidism or itself was incurred
in service, 38 C.F.R. § 3.306(b)(1) as extant in June 1976 provided:

> The usual effects of medical and surgical treatment in service, having
> the effect of ameliorating disease or other conditions incurred before
> enlistment, including postoperative scars, absent or poorly
> functioning parts or organs, will not be considered service connected
> unless the disease or injury is otherwise aggravated by service.

38 C.F.R. § 3.306(b)(1) (1975).

In this regard, three pieces of evidence before the June 1976 RO could
have been construed as indicating that the development of hypothyroidism
was a \"usual effect\[\]\" (38 C.F.R. § 3.306(b)(1)) of the treatment of
the appellant\'s hyperthyroidism. *See Fugo* and *Russell*, both
*supra*. Specifically, of record in June 1976 were, inter alia, **the
August 1975 in‑service hospital discharge summary in which the examiner
had \"recommended that \[the appellant\] be observed for signs of
decreasing thyroid activity\" (R. at 58);** **a service medical record
(SMR) in which the examiner had indicated that the appellant\'s
hypothyroidism was secondary to his in‑service I-131 treatment (R. at
185; *see* R. at 194 (same effect)); and an SMR in which the examiner
had recorded that the appellant\'s hypothyroidism was \"as suspected\"
(R. at 186). *See Crippen*,** 9 Vet.App. at 422; *see also Russell*,
3 Vet.App. at 313 (disagreement with manner in which evidence was
weighed is not CUE).

Lastly, other than the evidence described above, there was no other
evidence of record in June 1976 to demonstrate that the appellant\'s
hyperthyroidism had been \"otherwise aggravated\" (38 C.F.R.
§ 3.306(b)(1)), and the appellant has not presented any authority as to
the meaning of that term. *See* R. at **58, 138, 142, 166, 169, 173,
185, 186, 194, 200; *Crippen*, *Fugo*, and *Russell*, all *supra*.**

Thus, the Court should conclude that the appellant has not demonstrated
that the Board\'s determination, in the decision on appeal, that there
was no CUE in the June 1976 RO decision in which the RO had denied
service connection for the appellant\'s thyroid condition was
\"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.\" 38 U.S.C. § 7261(a)(3)(A); *see Russell*,
3 Vet.App. at 315. Further, given that the appellant has not shown,
based on the evidence of record in June 1976, that there could have been
CUE in the June 1976 RO decision, any inadequacy in the BVA\'s statement
of reasons or bases for its decision as to this CUE matter would be
nonprejudicial because no such CUE claim could have been granted on any
of the bases that the appellant has advanced. *See Eddy*, 9 Vet.App. at
58-59 (concluding that \"any inadequacy in the Board\'s statement
of . . . reasons or bases for its decision on \[the appellant\'s CUE\]
claim would be nonprejudicial error because a CUE claim could not have
been granted on any of the theories advanced by the appellant\"); *see
also Link*, *supra*. Finally, as to the interpretive questions regarding
38 C.F.R. § 3.306(b)(1) as extant in June 1976 that the majority has
identified (*ante* at 19‑20), I would note that, if it is unclear
whether an interpretation, which would form the basis for CUE, was
correct in 1976, such an interpretation cannot be relied upon to
demonstrate CUE. *See Berger*, 10 Vet.App. at 170. Accordingly, the
Court should affirm the August 2001 Board decision.