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

No. 98-1849

[Edward R. Andrews, Jr., Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

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

On Appeal from the Board of Veterans\' Appeals

(Decided June 29, 2004 )

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

*Leigh A. Bradley,* General Counsel; *Ron Garvin*, Assistant General
Counsel; *Joan E. Moriarty*, Deputy Assistant General Counsel; and
*Patricia Trujillo*, all of Washington, D.C., were on the pleadings for
the appellee.

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

GREENE, *Judge*, filed the opinion of the Court. STEINBERG, *Judge*,
filed an opinion concurring in part and dissenting in part.

GREENE, *Judge*: The veteran, Edward R. Andrews, Jr., appealed through
counsel a September 8, 1998, Board of Veterans\' Appeals (Board)
decision that found no clear and unmistakable error (CUE) in a July 1983
VA regional office (RO) decision that granted him service connection for
post-traumatic stress disorder (PTSD) at a disability rating of 10%, or
in a January 1985 RO decision that increased the rating for his
service-connected PTSD from 10% to 30%. Record (R.) at 3. On January 24,
2000, the Court, by single-judge order, dismissed Mr. Andrews\' appeal
on the basis that he had failed to allege any errors in the Board\'s
decision and therefore had abandoned the only issues addressed by the
Board. *Andrews v. West*, 17 Vet.App. 337 (2000) (table). Thereafter,
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
vacated this Court\'s January 2000 order and directed the Court to
\"decide the proper standard(s) for \[our\] review of the Board\'s
determination in this case respecting CUE and then to decide whether
under the applicable standard of review the denial of the CUE claim was
reversible error.\" *Andrews v. Principi*, 25 Fed.Appx. 997, 998 (Fed.
Cir. 2001).

On February 27, 2003, the Court, in a single-judge memorandum decision,
affirmed the September 8, 1998, Board decision. *Andrews v. Principi*,
No. 98-1849, 2003 WL 1791207 (Vet. App. Feb. 27, 2003). On March 14,
2003, the appellant, through counsel, filed a motion for reconsideration
or, in the alternative, for a panel decision. On July 31, 2003, the
Court, in a single-judge order, directed the Secretary to respond to the
appellant\'s motion; his response was received on September 4, 2003. On
March 23, 2004, the single judge denied reconsideration, but the panel
granted the motion for a panel decision. The February 27, 2003,
single-judge memorandum decision is withdrawn, and this opinion is
substituted in its place. Because the Court finds no merit in the
appellant\'s arguments, the Board decision will be affirmed.

**I. FACTS**

Mr. Andrews served on active duty in the U.S. Army from October 1966 to
March 1969, including service in Vietnam. R. at 15. A 1974 private
hospital discharge summary listed diagnoses of a suicide attempt,
depressive reaction, and schizoid personality. R. at 58. A November 1976
VA medical record listed a diagnosis of depression, and stated that the
veteran \"\[h\]as spent most of \[the\] time depressed to some extent
for \[the\] last 6-7 y\[ea\]rs.\" R. at 64. Other VA medical records
from November 1976 also indicated treatment for depression. R. at 66-71.

A January 1981 VA medical record noted that Mr. Andrews had been
admitted to a VA hospital that month, and contained diagnoses of
transitory atypical psychosis, PTSD, alcohol abuse in remission, and a
passive aggressive personality disorder. R. at 83. After participation
in a \"Vietnam Stress Group\", he was discharged with a prognosis of
\"\[f\]air to good.\" R. at 84. He submitted a statement detailing his
experiences in Vietnam (R. at 86-87) and was scheduled for a VA medical
examination, for which he failed to report (R. at 89, 91). As a result,
in May 1981, an RO denied his claim, which appears to have been inferred
from his prior statement (R. at 86-87). R. at 93.

In March 1983, Mr. Andrews sought to reopen his claim. R. at 96. The RO
reopened his claim and in July 1983 awarded him service connection for
PTSD, at a 10% rating. R. at 181. It appears that that decision was not
appealed. *See* R. at 1-348. In September 1984, he asked for an
increased rating for his service-connected PTSD. R. at 183. A December
1984 VA examination report recorded a diagnosis of PTSD, \"severe and
chronic.\" R. at 203-03. A January 1985 RO decision increased Mr.
Andrews\' PTSD rating from 10% to 30%. R. at 205-06. That decision
apparently was also not appealed. *See* R. at 1-348.

In March 1995, Mr. Andrews sought a permanent total disability rating
and argued that there was CUE in both the July 1983 and January 1985 RO
decisions. R. at 297-98. A June 1995 RO decision awarded him a permanent
and total rating for PTSD but found no CUE in either RO decision, after
stating that Mr. Andrews\' \"assert\[ion is\] no more than a
disagreement over matters of judgment and on this basis doesn\'t meet
the regulatory definition of\" CUE. R. at 307. In the September 1998
Board decision here on appeal, the Board concluded that, on the basis of
the law and evidence in existence at the time, both the July 1983 and
January 1985 RO decisions were correct, and that there was therefore no
CUE in either decision. R. at 11-12. The Board further stated:

> The arguments by the veteran and his representative for CUE in the
> 1983 and 1985 \[RO\] decisions are no more than a simple disagreement
> with how the VA weighed and evaluated the facts, and as such, this
> does not rise to the level of CUE. The Court has stated that it must
> always be remembered that CUE is a very specific and rare kind of
> \"error.\" It is the kind of error, of fact or law, that when called
> to the attention of later reviewers compels the conclusion, to which
> reasonable minds could not differ, that the result would have been
> manifestly different but for the error. *Fugo v. Brown*, 6 Vet.App.
> 40, 43 (1993). The veteran has not pointed to such error in the
> subject \[RO\] decisions, and the Board is unable to discern such
> error.

R. at 12. Mr. Andrews then appealed to this Court.

In January 2000, this Court, in a single-judge order, dismissed the
appeal from the Board\'s September 1998 decision; the Court stated:

> This Court has consistently held that any claims or issues not pursued
> on appeal are considered abandoned. *See Johnston v. Brown*, 10
> Vet.App. 80, 86 (1997); *Phillips v. Brown*, 10 Vet.App. 25, 27
> (1997); *Watai v. Brown*, 9 Vet.App. 441, 443 (1996); *Bucklinger v.
> Brown*, 5 Vet.App. 435 (1993). Here, the appellant has failed to
> allege any errors in the Board\'s decision and thus abandons the only
> issues addressed by the Board. On the other hand, Mr. Andrews\'
> counsel, citing *Luallen v. Brown*, 8 Vet.App. 92 (1995)\[,\] as legal
> authority, contends that questions of CUE are questions of law and
> thus subject to this Court\'s de novo review. . . . But the Court
> cannot discern in *Luallen* any valid basis for that position.
> Moreover, despite counsel\'s years of seasoned practice before this
> Court, he has not acknowledged case law that is contrary to this
> position or referred to controlling precedent.

*Andrews v. West*, *supra*. In December 2001, the Federal Circuit
vacated this Court\'s January 2000 order and remanded the case \"for a
disposition on the merits in accordance with this opinion, including the
Veterans Court\'s standard of review for the disposition by the Board of
Andrews\' CUE claim.\" *Andrews v. Principi*, 25 Fed.Appx. at 998-999.
The Federal Circuit stated:

> While Andrews may not explicitly state \"the Board erred,\" the fact
> that he is challenging the Board\'s decision is clear, as the Board
> affirmed the \[RO\'s\] decision denying the CUE claim. Andrews stated
> in his brief to the Veterans Court that \"contrary to both the \[RO\]
> and BVA\'s assertion, such a basis of CUE \[,i.e, one alleging that
> the RO failed to consider all relevant facts of record in making its
> determination as to a disability rating,\] is valid and does not
> constitute a \'dispute as to how the evidence was weighed.\'\"
> Appellant\'s Brief to Veterans Court at 11. This language clearly
> demonstrates that Andrews is indeed challenging the determination of
> the Board that all his \[CUE\] claim did was allege a defect in how
> the evidence was weighed. Clearly, Andrews was asserting that the
> Board erred in not discerning \[CUE\]. Therefore, it was error for the
> Veterans Court to dismiss the case on the ground that Andrews had
> failed to allege error in the Board\'s decision.
>
> Additionally, in contending that the Board\'s decision was erroneous,
> Andrews argued that the Veteran\'s Court had to review this decision
> de novo, asserting that a determination respecting \[CUE\] is a
> question of law. We agree that Andrews clearly raised a question of
> law, namely: the proper standard of review for \[CUE\], which clearly
> falls within the Veterans Court\'s jurisdiction. *See* 38 U.S.C. §
> 7261(a)(1) . . . .
>
> Accordingly, we remand the case to the Veterans Court for it to decide
> the proper standard(s) for its review of the Board\'s determination in
> this case respecting CUE and then to decide whether under the
> applicable standard of review the initial denial of the CUE claim was
> reversible error.

*Andrews v. Principi*, 25 Fed.Appx. at 998.

**II. ANALYSIS**

**Section 5109A of title 38, U.S. Code, provides that \"a decision by
the Secretary under this chapter is subject to revision on the grounds
of \[CUE\].\" 38 U.S.C. § 5109A. If the evidence establishes the error,
\"the prior decision shall be reversed or revised.\" *Id*. Section
3.105(a) of title 38, Code of Federal Regulations, provides that
\"\[p\]revious determinations which are final and binding . . . will be
accepted as correct in the absence of \[CUE\].\" 38 C.F.R. § 3.105(a)
(2003). A motion by a claimant that there was CUE in a previous RO
decision is a collateral attack on that decision. *See Smith*
(*William*) *v. Brown*, 35 F.3d 1516, 1527 (Fed. Cir. 1994). Where
evidence establishes such error, the prior decision will be reversed or
amended. 38 C.F.R. § 3.105(a).**

**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.**

***Russell*, 3 Vet.App. 310, 313 (1992) (en banc); *see also*** *Bustos
v. West*, 179 F.3d 1378 (Fed. Cir. 1999); *Damrel v. Brown*, 6 Vet.App.
242, 245 (1994) (quoting *Russell*, 3 Vet.App. at 313-14). A CUE
allegation must identify the alleged error with \"some degree of
specificity.\" *Crippen v. Brown*, 9 Vet.App. 412, 420 (1996); *Fugo*,
6 Vet.App. at 44 (holding that \"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\").

***A. Standard of Review***

As noted above, in its review of this case, the Federal Circuit stated
that Mr. Andrews had \"clearly raised a question of law, namely: the
proper standard of review for clear and unmistakable error,\" and
charged this Court \"to decide the proper standard(s) for its review of
the Board\'s determination in this case respecting CUE.\" *Andrews v.
Principi*, *supra*. This Court established more than 11 years ago the
proper standard of review for considering Board decisions determining
whether CUE had been committed in previous RO decisions:

> In *Russell*, this Court upheld as a valid regulation 38 C.F.R. §
> 3.105(a), and ruled that we have jurisdiction to review B\[oard\]
> decisions on claims that \[CUE\] had been committed in previous \[RO\]
> determinations. \[*Russell*\], 3 Vet.App. at 312. We also held in
> *Russell* that the scope of our review of such decisions is
> necessarily limited by our jurisdictional statutes. *Id.*\[\] at
> 314-15. *We cannot conduct a plenary review of the merits of the
> original decision*; rather, we are limited to determining whether the
> B\[oard\]\'s subsequent decision which has considered possible \[CUE\]
> in previous adjudications, the one on appeal before us, was
> \"arbitrary, capricious, an abuse of discretion, or otherwise not in
> accordance with law.\" 38 U.S.C. § 7261(a)(3)(A) . . . ; *Russell*,
> \[3 Vet.App.\] at 314-15.

*Archer v. Principi*, 3 Vet.App. 433, 437 (1992) (emphasis added).

In accordance with the directives of the Federal Circuit, this Court
here reiterates that the standard of review in this case as to the
Board\'s decision (on the merit of the CUE allegation) is the same
standard enunciated in *Archer*, *supra*, namely, determining whether
the Board decision on appeal to this Court is \"arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law\" in
denying the CUE allegation. 38 U.S.C. § 7261(a)(3)(A). The appellant has
not presented here a basis, nor can the Court fathom any, for
establishing and applying in this case a standard of review different
from the standard that has been consistently applied to appellants who,
over the past 11 plus years, have alleged CUE in prior final RO
decisions. Although *Archer* and *Russell* were decided before the CUE
law was enacted in 1997, Pub. L. No. 105-111, § 1(a), 717 Stat. 2271
(1997), it has long been established that section 5109A \"merely
codified 38 C.F.R. § 3.105 and the Court of Appeals for Veterans
Claims\' long standing interpretation of CUE.\" *Bustos*, 179 F.3d at
1381 (citing *Donovan v. West*, 158 F.3d 1377, 1382-83 (Fed. Cir.
1998)). Mr. Andrews maintains that the Court, applying a de novo
standard of review, should find CUE in the 1983 and 1985 RO decisions.
Appellant\'s (App.) Brief (Br.) at 14. However, this contention
*directly* contradicts our previous holding in *Archer*, *supra*, that
\"\[w\]e cannot conduct a plenary review of the merits of the original
decision.\" There are only two circumstances, relating to a CUE matter,
where the Court applies a de novo standard of review. The first is to
decide whether the appellant, as a matter of law, has presented a valid
CUE allegation, *see Phillips*, 10 Vet.App. at 30. However, *Phillips*
is not applicable here, because the issue before the Court in this
appeal is the Board decision on the merit of the appellant's CUE
allegation, not whether it was properly presented. The second CUE
component for de novo review is the question whether an applicable law
or regulation was not applied, which also involves a question of law,
*see Russell,* 3 Vet.App. At 319-20 (holding that Board erred \"as a
matter of law\" under 38 C.F.R. § 3.303(a) (1964), which requires
\"review of the entire evidence of record,\" when it denied the
existence of highly probative \"evidence that did indeed exist\").

Therefore, the Court rejects the appellant\'s arguments that a de novo
standard of review should be applied to the Board\'s CUE denial in this
case. The standard of review of the Board\'s decision in this case will
remain, as it has been since at least 1992, a standard that limits the
Court to determining whether the Board decision on the merit of the CUE
allegation was \"arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,\" as provided for in 38 U.S.C. §
7261(a)(3)(A). *See*, *e.g.*, *Simmons v. Principi*, 17 Vet.App. 104,
111 (2003); *Beyrle v. Brown*, 9 Vet.App. 377, 382 (1996); *Eddy v.
Brown*, 9 Vet.App. 52, 57 (1996); *Archer* and *Russell*, both *supra*.

Further, this Court has, on at least two occasions in the recent past,
issued opinions *specifically* rejecting similar (if not identical) CUE
standard-of-review arguments. *See Lane v. Principi*, 16 Vet.App. 78,
83-84 (2002), *aff\'d*, 339 F.3d 1331 (Fed. Cir. 2003); *Andre v. West*,
14 Vet.App. 7, 11-12 (2000) (per curiam order), *aff\'d sub nom. Andre
v. Principi*, 301 F.3d 1354 (Fed. Cir. 2002). Indeed, in *Lane*, this
Court explicitly rejected the major tenet of the argument that the
appellant presents here, that \"a CUE claim clearly constitutes a
question of law that is subject to de novo review\" (App. Br. at 8):

> We likewise reject that part of the appellant\'s first argument that
> contends that a CUE challenge is a \"question of law\" that entitles
> an appellant to both a review of the Board\'s decision, as well as a
> review by this Court on the merits. Although this Court has held that
> it will conduct de novo review of whether a viable CUE allegation has
> been presented to the Board, the Court has also consistently held that
> the question whether the BVA erred in determining that a prior
> decision did not contain CUE is reviewed by this Court under the
> \"arbitrary, capricious, an abuse of discretion, or otherwise not in
> accordance with law\" standard of review. 38 U.S.C. § 7261(a)(3)(A);
> *see Phillips*\[, *supra*\]; *see also Andre*\[, *supra*\] (holding
> same standard-of-review argument \"meritless\" and admonishing counsel
> for \"arguing what he thinks the law should be without recognizing
> existing precedent\"); *Russell*, \[3 Vet.App. at 315\].

*Lane*, *supra*.

Finally, the Court observes that the appellant's counsel, a seasoned
practitioner before this Court, is required to acknowledge in his
pleadings controlling precedent that is contrary to his position.
Furthermore, to the extent that counsel was unaware of *Archer* when he
submitted the brief on behalf of the appellant in this case (and the
Court notes that this opinion was issued some seven years before that
brief was filed), counsel is further reminded that, under Rule 30(b) of
this Court\'s Rules of Practice and Procedure (Rules), \"\[w\]hen
pertinent and significant authorities come to the attention of a party
after the party\'s brief has been filed or after oral argument but
before the decision, a party *shall* promptly advise the Clerk, by
letter, with a copy to all other parties, setting forth the citations.\"
(Emphasis added.) *Cf. Abbs v. Principi*, 237 F.3d 1342, 1345 (Fed. Cir.
2001) (\"\[e\]xamples of actions deemed sanctionable include, but are
not limited to, . . . failing to reference or discuss controlling
precedents\"). As the highlighted text makes clear, the requirement of
Rule 30(b) is a mandatory one. The Court trusts that, whatever the
reason for the counsel's failure to acknowledge contrary controlling
precedent in any filing in this case, counsel will endeavor to make sure
such a lapse does not occur in the future.

***B. CUE***

The Federal Circuit, in its remand order, directed that, after this
Court decided upon the proper standard of review in this case, we then
\"decide whether under the applicable standard of review the denial of
the CUE claim was reversible error.\" *Andrews v. Principi*, *supra*.
Mr. Andrews states his CUE argument as follows: \"In the present
case\[,\] Mr. Andrews is challenging the \[RO\]\'s failure to **consider
all the evidence** of record in its prior ratings decisions.\" Br. at
12; *see* 3 C.F.R. § 3.303(a) (1982 and 1984). This is a question of law
reviewed de novo by the Court, *see Russell, supra.*

As stated above, this Court held in *Archer* that \"\[w\]e cannot
conduct a plenary review of the merits of the original decision; rather,
we are limited to determining whether the B\[oard\]\'s subsequent
decision which has considered possible \[CUE\] in previous
adjudications, the one on appeal before us, was \'arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.\'\"
*Archer*, *supra* (quoting 38 U.S.C. § 7261(a)(3)(A)). In this case, the
Board, after reviewing in some detail the evidence of record and the
previous RO decisions, stated: \"The arguments by the veteran and his
representative for CUE in the 1983 and 1985 \[RO\] decisions are no more
than a simple disagreement with how the VA weighed and evaluated the
facts, and as such, this does not rise to the level of CUE.\" R. at 12.
After defining CUE as \"the kind of error, of fact or law, that when
called to the attention of later reviewers compels the conclusion, to
which reasonable minds could not differ, that the result would have been
manifestly different but for the error\", the Board concluded that
\"\[t\]he veteran has not pointed to such error in the subject \[RO\]
decisions, and the Board is unable to discern such error.\" *Id.*

Mr. Andrews has presented no more than a bald assertion of error in this
case, and argued the following general proposition in support of such
error: \"The mere fact that the \[RO\] cites to or mentions evidence in
passing\[\] does not mean that consideration or evaluation of all
evidence of record was undertaken. The \[RO\] is required to *review*
such evidence when making its rating decision.\" Br. at 13. The
appellant\'s argument fails because the RO in its 1983 and 1985
decisions was not required even to *discuss* the evidence that it
considered:

> However, the mere fact that the RO did not discuss \[a specific\]
> report in its decision or followup letter to the veteran does not make
> manifest that it did not consider it. Not until February 1990 were ROs
> required to include in their decisions \"a summary of the evidence
> considered\". 38 U.S.C. § 5104(b); *see* Veterans\' Benefits
> Amendments of 1989, Pub.L. No. 101-237, § 115, 103 Stat. 2062, 2066
> (1989). Hence, silence in a final RO decision made before February
> 1990 cannot be taken as showing a failure to consider evidence of
> record.

*Eddy*, 9 Vet.App. at 58. Given then that *silence* in a pre-February
1990 RO decision is not sufficient to establish a failure to consider
evidence of record, the appellant\'s assertions that citation to or
mention of evidence is insufficient to establish proper consideration of
the evidence of record must fail. *Cf.* *Russell,* 3 Vet.App. at 319
(holding that RO erred in 1972 decision by denying the existence of
evidence).

Further, even considering an apparently generous reformulation by the
Federal Circuit of Mr. Andrews\' inherently defective argument (i.e.,
\"Andrews is indeed challenging the determination of the Board that all
his \[CUE\] claim did was allege a defect in how the evidence was
weighed\"; \"\[c\]learly, Andrews was asserting that the Board erred in
not discerning \[CUE\]\", *Andrews v. Principi*, *supra*), because the
appellant failed to assert a specific error in the Board decision and
provide persuasive reasons why the result, but for the error, would have
been manifestly different, the Court can find no basis on which to
conclude that the decision of the Board was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law. *See
Fugo*, *supra*. The Court also reviews Board decisions on CUE to decide
whether the Board's determination is supported by an adequate statement
of reasons or bases. *See Eddy v. Brown*, 9 Vet.App. 52, 57 (1996);
*Russell*, 3 Vet.App. at 315. We find no reasons-or-bases deficiency in
the instant Board decision.

***C. Roberson II and VBA***

In his motion for reconsideration or panel decision, the appellant
asserts that the Court overlooked both the Federal Circuit\'s opinion in
*Roberson v. Principi*, 251 F.3d 1378 (Fed.Cir. 2001) (*Roberson II*),
and the amendments made to 38 U.S.C. § 7261 by the Veterans Benefits Act
of 2002, Pub. L. No. 107-330, 116 Stat. 2819, 2833 (VBA). He argues that
the \"newly articulated standard set out in *Roberson*\" requires a
remand to the Board for readjudication. Motion (Mot.) at 10. He contends
that the VBA amendments made to this Court\'s standard of review require
a reconsideration of his case \"based upon the newly amended standard of
\'clearly erroneous\' as articulated by the VBA.\" Mot. at 11.

**The appellant\'s argument that the \"newly articulated standard set
out in *Roberson* \[*II*\]\" requires a remand to the Board for
readjudication (Mot. at 10) is without merit. In *Roberson II*, the
Federal Circuit held that when a veteran submits evidence of a medical
disability (for which he is in turn awarded service connection), claims
the highest rating possible, and submits evidence of unemployability, as
had the veteran in that case, VA must consider a rating of total
disability based upon individual unemployability (TDIU), even if not
specifically requested by the veteran. *Roberson II*, 251 F.3d at
1382-85. The Federal Circuit also stated:**

> **In *Hodge v. West*, 155 F.3d 1356 (Fed. Cir. 1998), we . . .
> determined that Congress has mandated that the 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 II*, 251 F.3d at 1384. In *Szemraj v. Principi*, the Federal
Circuit, in discussing *Roberson II*, recently stated the following:**

> ***Roberson* \[*II*\] did not change the well-established legal
> standard for determining the existence of CUE in RO and \[Board\]
> decisions. *See Cook* \[*v. Principi*\], 318 F.3d \[1334,\] 1344
> \[(Fed. Cir. 2003) (en banc)\]; *see also* 38 U.S.C. §§ 5109A, 7111
> (2000). . . . All *Roberson* \[*II*\] requires is that VA give a
> sympathetic reading to the veteran\'s filings to determine all claims
> for recovery supported by a liberal construction of those
> allegations.**

***Szemraj*, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). The Federal
Circuit also reiterated its holding in *Roberson II* that VA is
\"required to consider a CUE claim using the standard of *Hodge*
\[(i.e., the duty to fully and sympathetically develop the veteran\'s
claim to its optimum)\]\" and further stated that \"*Roberson* \[*II*\]
requires, with respect to all pro se pleadings, that the VA give a
sympathetic reading to the veteran\'s filings by \'determining all
potential claims raised by the evidence, applying all relevant laws and
regulations.\'\" *Szemraj*, 357 F.3d at 1373 (quoting *Roberson II*, 251
F.3d at 1384). Notwithstanding some interpretive issues (particularly in
light of the requirement that CUE**

**must be pled with some specificity, *see Andre*, *infra*) in the
Federal Circuit\'s language in both *Szemraj* and *Roberson II*, the
existing authority on CUE, which the Federal Circuit stated in *Roberson
II* was not being changed, limits the potential interpretations of the
*Roberson II* standard. Moreover, in *Moody v. Principi*, 360 F.3d 1306,
1310 (Fed. Cir. 2004), the Federal Circuit clarified that in
adjudicating a CUE claim, VA is to sympathetically read the claimant\'s
submissions to VA at the time of the decision being collaterally
attacked (and not the appellant\'s CUE motion itself). Specifically, the
Federal Circuit stated in *Moody*:**

> **The question is whether the BVA, as required by *Roberson*,
> sympathetically read Mr. Moody\'s filings prior to June 24, 1994,
> \[the date of Mr. Moody\'s underlying claim, the decision in which is
> now being collaterally attacked,\] in determining whether Mr. Moody
> made an informal claim for secondary service connection for his
> psychiatric disorder. The interpretation of these prior filings is
> essentially a factual inquiry, and it is beyond our jurisdiction to
> make that determination.**

***Moody*, *supra*. Under *Moody*, the Board was to afford this
sympathetic reading to those filings to see if the underlying decision
contained CUE by virtue of a failure by VA to fully and sympathetically
develop the veteran\'s claims, but Mr. Andrews\' appeal must fail under
that analysis because he has not asserted before the Board (or, for that
matter, before this Court or the Federal Circuit) that VA failed to so
develop his claim. \"Because a CUE claim involves an allegation of an
error with \'some degree of specificity,\' a veteran\'s assertion of a
particular clear and unmistakable error by the RO constitutes a distinct
claim.\" *Andre v. Principi*, 301 F.3d 1354, 1361 (Fed. Cir. 2002).
Furthermore, if the Federal Circuit\'s three opinions were somehow to
mean (although we believe that *Moody* shows that this is not what
*Roberson II* was requiring) that VA is required to fully and
sympathetically develop the appellant\'s CUE motion itself, Mr. Andrews
has neither asserted that his CUE motion raised any additional claims
not related to the prior final RO decisions (which, of course, can be
reviewed for CUE only \"based upon the evidence of record at the time of
the original decision,\" *Cook*, 318 F.3d at 1344), nor asserted that VA
failed to give a \"sympathetic reading\" to his CUE motion. Indeed, as
to any such interpretation, we note that it would be difficult, if not
impossible, to discern how an appellant could establish that VA had
failed to give his CUE motion a sympathetic reading. Finally, we admit
that we are puzzled by how \"the well-established legal standard for
determining the existence of CUE\" can be considered unchanged by
*Roberson*\'s requirement that \"VA give a sympathetic reading to the
veteran's filings to determine all claims for recovery supported by a
liberal construction of those allegations\", *Szemraj*, 357 F.3d at
1375-76 (citing *Cook*, *supra*, for determination that *Roberson* did
not change CUE standard), in light of *Cook*\'s express reaffirmation of
*Russell*, which held that the error must be \"obvious\" on the face of
the record and \"undebatable,\" *Russell*, 3 Vet.App. at 314; *Cook*,
318 F.3d at 1344-45 (noting how Congress had \"explicitly endorsed the
*Russell* interpretation of CUE\").**

**Concerning the appellant\'s argument that the VBA amendments to
section 7261 necessitate a remand for reconsideration of his case, he
relies upon the following changes: (1) The addition of the phrase
\"adverse to the claimant\" after \"material fact\" in section
7261(a)(4); (2) the addition of the words \"or reverse\" after \"and set
aside\" in section 7261(a)(4); and (3) the addition of a new section
7261(b)(1), which states that the Court shall \"take due account of the
Secretary\'s application of section 5107(b) \[(the \'benefit of the
doubt\' provision)\] of this title.\" Mot. at 4. The appellant\'s
arguments as to these points are long on exposition, but short on
substance. On the first two points, he argues that these additions,
along with the addition to section 7261(b) of the statement that the
Court shall review the record of proceedings before the Secretary and
the Board, mandate that \"this Court must examine the Board\'s adverse
findings of fact in light of the entire record in the exercise of
independent judgment as to whether the Board\'s September 1998 decision
was \'clearly erroneous\'\" based upon the evidence as it existed in
1983 and 1985. Mot. at 6. However, the statutory additions cited by the
appellant do not disturb our standard of review as to the Board decision
on CUE. His arguments fail to account for the fact that our standard of
review in this type of case is not based upon section 7261(a)(4), but
rather upon section 7261(a)(3)(A), which has not been amended. *See
Archer v. Principi*, 3 Vet.App. 433, 437 (1992).**

Furthermore, the addition of section 7261(b)(1) could not have any
application to our review of Board CUE decisions. In *Fugo*, 6 Vet.App.
at 44, this Court stated that the issue of whether or not a claimant was
accorded the benefit of the doubt was \"an issue clearly within the
\'weighing and evaluation\' realm.\" As established in *Russell*, 3
Vet.App. at 313, \"\[t\]he claimant \[alleging CUE\] . . . must assert
more than a disagreement as to how the facts were weighed or evaluated\"
and the benefit-of-the-doubt \"rule of 38 U.S.C. §
5107(b)\[(1)\] . . . could never be applicable\" in assessing a CUE
motion, *id.* at 314. The appellant presents no persuasive arguments as
to why or how these precedents should be ignored in this case; hence, we
will not do so.

Finally, nearly identical arguments regarding the effect of the VBA on
this Court\'s standard of review were rejected in *Roberson v.
Principi*, 17 Vet.App. 135, 139 (2003) (per curiam) (*Roberson III*)
(finding that VBA amendments \"have, by their language, made very little
change to our standard of review,\" and that \"the VBA, as written, does
not effectuate . . . a change\" in our standard of review). Although
*Roberson III* did not specifically address our standard of review over
Board determinations finding no CUE in prior RO decisions, it would be
incongruous, particularly in light of the above analysis, for the Court
to accept here the same arguments it has rejected in another, similar
situation. Therefore, we hold that the statutory amendments cited by Mr.
Andrews are not applicable to our standard of review in this matter. The
Board decision will be affirmed.

**III. CONCLUSION**

After consideration of the pleadings and a review of the record, the
Court holds that Mr. Andrews has not demonstrated that the Board
committed either legal or factual error that would warrant reversal or
remand for his CUE allegation. The Court is also satisfied that the
Board decision fulfills the \"reasons or bases\" requirements of 38
U.S.C. § 7104(d)(1). *See Eddy* and *Gilbert,* both *supra.*

AFFIRMED.

STEINBERG, ***Judge*, concurring in part and dissenting in part: I join
in the opinion of the Court except for the concluding paragraph of part
II.C, which unnecessarily addresses a matter, the effect of the Veterans
Benefits Act of 2002 (VBA), Pub. L. No. 107‑330, § 401, 116 Stat. 2820,
2832 (Dec. 6, 2002), on the Court\'s standard of review. Because the
preceding two paragraphs in the Court\'s opinion fully and completely
dispose of the appellant\'s unpersuasive contention that the VBA somehow
affected the Court\'s standard of review as to an appeal of a BVA denial
of a CUE claim, there is no occasion for the opinion to address the more
general question and thus refer to the Court\'s unwarranted -- and, in
my view, incorrect -- dicta in *Roberson v. Principi*, 17 Vet.App. 135,
139 (2003) (per curiam order). Therefore, I dissent from the last
paragraph of part II of the majority opinion; my specific views about
these matters are set forth in my dissenting statement accompanying the
full Court order in *Wells v. Principi* , \_\_ Vet.App. \_\_, No.
03-1014, 2004 WL 1053160 (May 11, 2004) (en banc per curiam order).**

**I note also the following about the discussion in part II.A of the
Court\'s opinion (*ante* at 6‑7, \_\_ Vet.App. at \_\_ ) regarding the
standard of review of a Board denial that there was CUE in a prior final
decision. I agree that the question whether an applicable law or
regulation was not correctly applied is a question of law to be reviewed
de novo by the Court. I note, however, that a Board determination that
the adjudicator did not have before him or her \"the correct facts, as
they were known at the time\", *Russell v. Principi,* 3 Vet.App. 310,
313 (1992) (en banc), and thus that no error was committed, might well
be subject to review as a question of fact subject to the \"clearly
erroneous\" standard under 38 U.S.C. § 7261(a)(4). The Board\'s decision
on the ultimate question -- Was there CUE in the prior decision? -- is,
of course, reviewable under the 38 U.S.C. § 7261(a)(3)(A) standard --
\"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law\", as correctly indicated in the Court\'s opinion,
*ante* at 7‑8, \_\_ Vet.App. at \_\_.**