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

No. 01-575

[Burdett Huston, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

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

On Appeal from the Board of Veterans\' Appeals

(Decided July 11, 2003 )

*Theodore C. Jarvi*, of Tempe, Arizona, was on the brief for the
appellant.

*Tim S. McClain*, General Counsel; *R. Randy Campbell*, Assistant
General Counsel; *Brian B. Rippel*, Acting Deputy Assistant General
Counsel, and *Michael R. Smalls*, all of Washington, D.C., were on the
brief for the appellee.

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

STEINBERG, *Judge*: The appellant, through counsel, seeks review of a
February 21, 2001, Board of Veterans\' Appeals (Board or BVA) decision
that denied an effective date earlier than June 7, 1991, for his
Department of Veterans Affairs (VA) service-connected bilateral hearing
loss; that decision included the issue whether a May 15, 1981, VA
regional office (RO) decision denying service connection for that
condition contained clear and unmistakable error (CUE). Record (R.) at
1-3. The appellant and the Secretary each filed briefs, 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 that follow, the Court will vacate the Board decision and remand
the matter for readjudication.

**I. Background**

The veteran served honorably in the U.S. Army from June 1941 until
September 1945. R. at 11. While serving in World War II, he was injured
on March 11, 1945, when shrapnel from a hand grenade struck his left eye
and left upper jaw; he was awarded a Purple Heart for his service. R. at
72, 63, 11. On May 15, 1981, the VARO denied, inter alia, the veteran\'s
initial claim for VA service connection for bilateral hearing loss (R.
at 48-49); the following evidence was apparently then of record: March
1945 morning reports recording that the veteran was \"slightly
wounded\", a March 1977 VA report of medical examination for disability
evaluation that recorded \"partial deafness\" (R. at 36), a note of
\"\[p\]artial deafness . . . when the veteran was hospitalized by VA in
June 1980\", and an April 1981 audiometric examination report revealing
a history of noise exposure in service and recording the shrapnel wound
to the left jaw. *See* R. at 166 (November 6, 1995, BVA decision listing
evidence before RO at time of its May 1981 decision). The RO sent to the
veteran in June 1981 notice of that May 1981 decision. R. at 51-52. Also
in June 1981, the veteran filed a Notice of Disagreement (NOD), but only
as to a separate eye-disability claim (R. at 53-54), and the RO issued a
Statement of the Case (SOC) only as to the eye condition (R. at 57-61).
Ten years later, in June and December 1991, the veteran filed two VA
Form 1-9s (Substantive Appeal to BVA) (R. at 72-73 (referring to his
hearing problem but expressing disagreement only as to RO eye-disability
decision), 75-76 (stating veteran would present his case at hearing he
requested)); it does not appear that those appeals were ever acted on by
the Board.

In June 1993, the veteran filed a claim to reopen his previously and
finally disallowed service-connection claim for bilateral hearing loss
(R. at 90-91); the RO denied service connection in May 1994 (R. at
104-05) and sent notice of that decision to the veteran in June 1994 (R.
at 107). The veteran filed an NOD in June 1994 (R. at 112), and in July
1994 the RO issued an SOC (R. at 115-21) and the veteran filed his
Substantive Appeal to the Board (R. at 123-24). In November 1995, the
Board reopened the veteran\'s claim based on new and material evidence,
including a February 1977 VA medical record noting that the veteran had
told a physician that he had incurred \"a grenade wound to the head\"
during World War II and suffered \"subsequent hearing loss, most severe
in the right ear\", a condition that \"was confirmed during this
hospitalization by impairment demonstrated on audiogram\" (R. at 63). R.
at 166-67. The Board granted service connection (R. at 168, 170), and on
December 15, 1995, the RO assigned a 30% rating for that disability,
effective June 29, 1993, the date of the veteran\'s claim to reopen. R.
at 174-75. It is unclear from the record on appeal (ROA) when notice of
that decision was sent to the veteran; there is no notice attached to
the RO decision, although there is a January 10, 1996, letter from the
RO notifying the veteran of the grant of service connection for his
hearing loss and his amended disability award (taking account of his
other service-connected disabilities). R. at 178. On December 18, 1996,
the veteran filed an NOD as to the December 1995 RO decision\'s
assignment of the June 1993 effective date. R. at 181-82. In September
1998, the RO issued another decision in which it determined that there
was CUE in the December 1995 RO decision and assigned an effective date
of June 7, 1991, the date that \"the veteran had reopened his claim.\"
R. at 185-87. That date corresponds to the receipt date of a VA Form 1-9
filed by the veteran that largely pertained to his eye claim but also
stated that he was told during a 1981 examination that his \"hearing
loss could have been caused by a sharp blast and the shrapnel from the
grenade.\" R. at 73. Also received on that date (apparently with that
form) were the 1977 VA hospital report (R. at 63-64); a letter from a
private hearing-aid specialist, attesting to the veteran\'s hearing loss
(R. at 66-67); and a June 1991 statement by an individual identified as
a \"Veterans Service Officer\" asserting that the veteran had made two
prior applications for assistance in purchasing hearing aids (R. at
69-70). It appears that the Board considered at least one of these
documents to be an informal claim to reopen. *See* R. at 185.

In October 1998, the veteran filed a statement-in-support-of-claim form
in which he requested an earlier effective date (EED): \"I ask that . .
. VA consider the previous final decision a product of \[CUE\], or that
the \[EED\] should be established based on the old evidence as
supplemented by the new and material evidence submitted with the
reopened claim.\" R. at 192. In June 1999, the RO denied an EED because
\"\[n\]o revision is warranted in the decision to grant service
connection for a hearing loss effective 06-07-91.\" R. at 195-97. In a
December 1999 SOC, the RO framed the issue as \"\[w\]hether the decision
to grant service connection for a hearing loss effective 06-07-91 was
\[CUE\].\" R. at 202-18. The veteran then appealed to the Board (R. at
220-21), after which the RO issued in February 2000 a Supplemental SOC,
which stated that the May 1981 decision had become final on June 1,
1982, one year after the date of notice of that decision. R. at 229-31.
In response, the veteran filed a statement-in-support-of-claim form,
requesting as an effective date the date of his injury, March 11, 1945.
R. at 223.

In the BVA decision here on appeal, the Board defined the issue before
it as \"\[e\]ntitlement to an effective date prior to June 7, 1991, for
an award of service connection for bilateral hearing loss, to include
whether the rating decision of May 15, 1981, was clearly and
unmistakably erroneous.\" R. at 1. The Board then determined that there
was no CUE in the May 15, 1981, decision, despite the appellant\'s
contention that the RO had failed to consider 38 U.S.C. § 1154(b) in
light of the veteran\'s combat status, because \"the May 1981 \[RO\]
decision contains a reference to the veteran\'s Purple Heart award, and
as such, it appears that the RO considered the veteran\'s combat
service.\" R. at 5. The Board concluded that there was \"no indication
in the record that the law regarding service connection for hearing loss
was incorrectly applied\" and that \"the veteran has not articulated a
plausible argument based on a failure to apply the law or misapplication
of the law to his case in light of the contemporaneous evidence\"; based
on these conclusions, the Board found no CUE in the May 1981 decision.
R. at 5-6.

The Board also addressed other grounds for obtaining an EED. Reasoning
that the May 1981 RO decision became final because the veteran failed to
seek appellate review within one year after mailing of notice of that
decision, the Board concluded:

> The finality of th\[at\] . . . decision precludes consideration of an
> effective date of the award of service connection for hearing loss
> prior to the date of that . . . decision. *See* 38 U.S.C.\[\] § 5110;
> 38 C.F.R. § 3.400(q)(1)(ii). The veteran eventually prevailed, as a
> November 1995 Board decision reopened the veteran\'s claim on the
> basis of new and material evidence and granted service connection for
> bilateral hearing loss. That decision was effectuated by a December
> 1995 rating decision which assigned an effective date of June 29,
> 1993. The veteran disagreed with the effective date, and a September
> 1998 \[RO\] decision assigned an \[EED\] of June 7, 1991, which is
> currently in effect. The veteran continued to express his disagreement
> with the effective date. As such, the central issue before the Board
> is the date the RO received the veteran\'s request to reopen his claim
> which eventually led to the grant of service connection.

R. at 7. The Board determined that June 7, 1991, was the date of receipt
of the veteran\'s request to reopen and that \"\[p\]rior to that date,
the only correspondence of record pertains only to the veteran\'s
left-eye disorder, with no mention of hearing loss\", so there was no
basis for an EED by direct challenge of the claim to reopen. R. at 7.

The appellant argues principally as follows: (1) The Board\'s CUE
analysis was \"illegal\" because the September 1998 RO decision, which
found CUE in a prior RO decision and awarded the June 7, 1991, effective
date here on appeal, was an \"original, non-final adjudication on the
issue of effective date\" (Brief (Br.) at 3, 6-8 (citing 38 C.F.R.
§ 3.105(a) (2001))); (2) the Board \"changed the issue\" in the
appellant\'s case to CUE (Br. at 8-10); (3) VA failed to fulfill its
duty to suggest evidence necessary to develop the veteran\'s claim that
the veteran may have overlooked and to tell him that CUE in the May 1981
decision was going to be an issue on appeal (Br. at 5, 10-11 (citing,
inter alia, 38 C.F.R. § 3.103(c)(2) (2001))); and (4) the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000) (VCAA), required that the Board provide notice to the claimant
that it was going to decide his claim based on CUE (Reply at 3-4). The
Secretary responds as follows: (1) The February 2001 BVA decision
finding no CUE in the May 1981 RO decision was not arbitrary and
capricious because there was no medical evidence at that time of nexus
between the appellant\'s condition and his service and because the 38
U.S.C. § 1154(b) presumption does not abrogate the medical-nexus
requirement (Br. at 8, 10-11 (citing *Caluza v. Brown*, 7 Vet.App. 498,
507 (1995), *aff\'d per curiam*, 78 F.3d 604 (Fed. Cir. 1996) (table)));
(2) the appellant merely is disagreeing with the weighing of the
evidence, which cannot be a ground for CUE (Br. at 11); (3) the May 1981
RO decision is final and, therefore, the effective date of the
appellant\'s service-connected hearing loss cannot be earlier than the
date of that rating (Br. at 12); and (4) the appellant asked for the
Board to \"set aside\" the May 1981 RO decision and raised the issue of
CUE himself (Br. at 17 (citing R. 246-49)).

**II. Analysis**

***A. Claim Streams***

There are two claim streams in the history of the appellant\'s VA claims
for a hearing-loss disorder*, see* 38 C.F.R. §§ 4.85, 4.87a (1980); 38
C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2000). After receiving notice
on June 1, 1981, that his initial bilateral-hearing-loss
service-connection claim had been denied the month before by the RO, the
veteran did not file an NOD as to that claim within one year; therefore,
that decision became final on June 1, 1982. *See* 38 U.S.C. § 7105(b)(1)
(requiring NOD to be filed within one year after notice). Furthermore,
even if the veteran\'s NOD filed in June 1981 and the SOC issued by the
Board that same month had pertained to the veteran\'s
bilateral-hearing-loss claim, the May 1981 decision still would have
become final on June 1, 1982, because the veteran failed to file a
timely Substantive Appeal after the issuance of the SOC. *See* 38 U.S.C.
§ 7105(d)(3) (requiring that appeal be filed within 60 days after
issuance of SOC or within the remainder of the one-year period from the
date of notice of the RO decision, whichever period ends later); 38
C.F.R. § 20.302(b)(1) (2002).

The second bilateral-hearing-loss claim stream was opened on June 7,
1991, the date that the veteran filed with the RO what the RO determined
in September 1998 was an informal claim to reopen. R. at 185, 196; *see*
R. at 73, 63-64, 66-67, 69-70 (documents filed on June 7, 1991). Prior
to that September 1998 determination and the award of an effective date
based thereon, the RO in May 1994 had denied service connection (R. at
104-05, 107), the appellant in July 1994 had appealed to the Board (R.
at 123-24), the Board in November 1995 had found new and material
evidence to reopen the previously and finally disallowed claim and had
awarded service connection (R. at 164-65, 167-68), and the RO in
December 1995 had awarded a 30% bilateral-hearing-loss rating, effective
June 29, 1993 (R. at 174-76). In its September 1998 decision assigning
the June 1991 (instead of the June 1993) effective date, the RO did so
based on its finding of CUE in the December 1995 decision as to the
erroneous award of the June 1993 effective date. R. at 185-87. The Court
notes that the RO\'s adjudication of the claim under a CUE analysis was
in error because the December 1995 RO decision appears not to have been
final. Specifically, (1) there is no notice to the veteran of that
December 1995 RO decision in the ROA other than a letter dated January
10, 1996, that notified the veteran of the hearing-loss
service-connection award and his amended disability award (R. at 178),
and the December 18, 1996, NOD thus appears to have been timely; (2) in
the decision here on appeal, the Board stated that the \"veteran
***disagreed*** with the effective date\" assigned in the December 1995
RO decision and that \"a September 1998 \[RO\] decision assigned an
\[EED\] of June 7, 1991\" (R. at 7 (emphasis added)), thereby indicating
that the Board considered the appellant\'s claim to be on direct appeal;
and (3) the Board did not apply a CUE analysis to its review of the
September 1998 RO decision (*see* R. at 6-8). Although the RO in
September 1998 apparently erroneously adjudicated the appellant\'s EED
claim on a CUE basis, the decision was favorable to the appellant in
that an EED was assigned. Because the appellant timely appealed that
decision, this second claim stream is currently still open before the
Court.

Therefore, the Court has before it the appellant\'s EED claim based on
two different theories: (1) That the appellant is entitled to an EED for
the 30% rating based on a direct challenge to the June 1999 RO decision,
the most recent RO decision in the current claim stream; and (2) that
the May 1981 RO decision contained CUE. Accordingly, there are ***two
separate analyses*** in the Board decision on appeal: One for CUE in the
May 1981 RO decision, which was a ***final*** decision, and one for the
claim directly on appeal from the June 1999 RO decision, which was a
***nonfinal*** decision and is still on appeal and which subsumes the
September 1998 RO decision. *See* *Mason (Sangernetta) v. Brown*,
8 Vet.App. 44, 51 (1995) (holding that, generally, effective date
earlier than date assigned in previous RO decision may be awarded only
if there was CUE in that decision or it never became final).

***B. Direct Challenge of the June 1999 RO Decision***

Generally, the effective date of an award of compensation for a
service‑connected disability will be \"the date of receipt of the claim
or the date entitlement arose, whichever is later.\" 38 C.F.R. § 3.400.
The determination of the effective date for a claim to reopen \"shall be
fixed in accordance with the facts found, but shall not be earlier than
the date of receipt of application therefor.\" 38 U.S.C. § 5110(a);
38 C.F.R. § 3.400(r); *see also Link v. West*, 12 Vet.App. 39, 46
(1998). Here, it is undisputed that the veteran submitted an informal
claim to reopen on June 6, 1991, which is the current effective date of
his 30% rating. R. at 185; *see* R. at 73, 63-64, 66-67, 69-70. Although
the appellant is claiming that entitlement arose on March 11, 1945, the
date of his in-service injury, as a result of his direct-appeal claim he
is not eligible to receive a 30% rating prior to May 15, 1981, because
that is the date of a final decision, and once a claim to reopen is
received after \"final disallowance\", the earliest that an effective
date may be assigned is the date of the claim to reopen. 38 C.F.R.
§ 3.400(q)(1)(ii) (2002). Accordingly, as a matter of law the only way
that he could be entitled to an EED through a direct challenge to the
June 1999 RO decision would be if he had filed a claim to reopen prior
to his June 6, 1991, informal claim, *see* 38 U.S.C. § 5110(a);
38 C.F.R. § 3.400(r), but ***after*** May 15, 1981, the date of the
prior final RO decision, *see* 38 C.F.R. § 3.400(q)(1)(ii). For example,
the Court notes that the Board correctly concluded as to such a
challenge that whether or not the RO should have considered the 1977 VA
hospital report as a claim to reopen, the finality of the May 1981 RO
decision prevents the assignment of an effective date as of that date.
R. at 7; *see* 38 C.F.R. § 3.400(q)(1)(ii). However, section 5110(a) and
§ 3.400(r) do not preclude the award of an EED between May 15, 1981 and
June 6, 1991, and the outcome of such a claim is dependent on the facts
of this case -- specifically, whether any document or action in that
time period might be considered a claim to reopen. The assignment of an
effective date is a question of fact reviewable by the Court under the
\"clearly erroneous\" standard set forth in 38 U.S.C. § 7261(a)(4).
*See* *Quarles v. Derwinski*, 3 Vet.App. 129, 135 (1992)

The VCAA amended, inter alia, 38 U.S.C. § 5103 (\"Notice to claimants of
required information and evidence\") and added 38 U.S.C. § 5103A (\"Duty
to assist claimants\"). VCAA § 3(a), 114 Stat. at 2096-98. The Court
subsequently issued its opinion in the *Holliday* case, wherein the
Court held \"that all provisions of the VCAA are potentially applicable
to claims pending on the date of the VCAA\'s enactment.\" *Holliday
v. Principi*, 14 Vet.App. 280, 286, *mot. for recons. denied*,
14 Vet.App. 327 (per curiam order), *mot. for full Court review denied*,
15 Vet.App. 21 (2001) (en banc order). *But see Dyment v. Principi*, 287
F.3d 1377, 1385 (Fed. Cir. 2002) (seemingly overruling in part, sub
silentio, *Holliday*, *supra*, as to application of holding set forth
above to pre-VCAA BVA decisions). Pursuant to *Karnas* *v. Derwinski*,
\"where the law or regulation changes after a claim has been filed or
reopened but before the administrative . . . appeal process has been
concluded, the version mo\[re\] favorable to \[the\] appellant should .
. . apply unless Congress provided otherwise or permitted the
\[Secretary\] to do otherwise and the Secretary did so.\" *Karnas*,
1 Vet.App. 308, 313 (1991). On August 29, 2001, the Secretary issued
regulations that implemented new sections 5103 and 5103A in 38 C.F.R.
§ 3.159(b) and (c) (2002), respectively. 66 Fed. Reg. 45,620, 45,630‑31
(Aug. 29, 2001). He made those regulations applicable to, inter alia,
any claim for benefits, such as in the instant case, pending before the
Department and \"not decided by VA\" as of November 9, 2000, the date of
the VCAA\'s enactment. 66 Fed. Reg. at 45,629.

The Board is required to consider, and discuss in its decision, all
\"potentially applicable\" provisions of law and regulation. *Schafrath
v. Derwinski*, 1 Vet.App. 589, 593 (1991); *see* 38 U.S.C. § 7104(a),
(d)(1); *Weaver v. Principi*, 14 Vet.App. 301, 302 (2001) (per curiam
order); *Sanden v. Derwinski*, 2 Vet.App. 97, 100 (1992). The Board is
also required to include in its decision a written statement of the
reasons or bases for its findings and conclusions on all material issues
of fact and law presented on the record; that statement 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* 38 U.S.C.
§ 7104(d)(1); *Allday v. Brown*, 7 Vet.App. 517, 527 (1995); *Gilbert v.
Derwinski*, 1 Vet.App. 49, 56-57 (1990).

As to the new notice requirements, in *Quartuccio v. Principi* this
Court specifically held that new section 5103(a) and new § 3.159(b)
require VA to inform the claimant (1) of the information and evidence
not of record that is necessary to substantiate the claim, (2) of the
information and evidence that VA will seek to provide, and (3) of the
information and evidence that the claimant is expected to provide; the
Court held implicitly that BVA failure to enforce compliance with that
requirement is remandable error. *Quartuccio*, 16 Vet.App. 183, 187
(2002). This Court also has held that the Board\'s failure to address
adequately in its decision the notice provisions in new section 5103(a)
is a ground for remand under 38 U.S.C. § 7104(a) and (d)(1). *Charles v.
Principi*, 16 Vet.App. 370, 374 (2002).

In the February 2001 decision here on appeal, the Board erred by failing
to mention or discuss the notice requirements in new section 5103(a)
with respect to the veteran\'s direct-appeal EED claim (*see* R. at
181-82 (December 1996 NOD as to June 1993 effective date), 192 (October
1998 disagreement with June 1991 effective date)) and to determine
whether those obligations were fulfilled. *See* R. at 1-8; *Charles*,
*supra*. Accordingly, the Court will vacate the BVA decision as to that
claim and remand the matter for readjudication; on remand, the Board
must provide an adequate statement of reasons or bases for its decision,
discussing ***all*** potentially applicable law and regulation,
including the VCAA and VA regulatory notice provisions. *See Charles*,
*Weaver*, *Allday*, *Sanden*, *Schafrath*, and *Gilbert*, all *supra;
cf. Quartuccio, supra*.

Moreover, it appears that VA did not comply with certain notice
requirements contained in new section 5103(a), as later implemented by
new regulation § 3.159(b). Specifically, the ROA contains no documents
in which VA purported to advise the appellant of the information and
evidence necessary to substantiate his direct-appeal EED claim -- such
as evidence pertaining to an informal claim to reopen made between May
15, 1981, and June 6, 1991. *See* R. at 1-270. Furthermore, no document
in the ROA specifically states, as new section 5103(a)-complying notice
must, what information and evidence was necessary to substantiate that
claim or addresses, under the VCAA amendments and new § 3.159(b), which
information and evidence the Secretary would seek to obtain and which
information and evidence the claimant would be expected to obtain. *See*
R. at 1-270; *Quartuccio*, *supra*. Even if the Court were to address
the issue whether the required section 5103(a) notice ***could*** be
provided as late in the claims process as the issuance of an SOC or RO
decision and to decide that it could be, the documents here did not
provide the appellant with notice that reflected changes in the law
brought about by the VCAA\'s enactment. *See* R. at 1-270.

Because the ROA contains no specific notice to the appellant that meets
the standard established by new section 5103(a) and new § 3.159(b) as to
his direct-appeal EED claim, the Court will remand that claim for
readjudication on this basis as well. *See Quartuccio*, *supra*
(vacating BVA decision and remanding where Secretary did not comply, and
BVA did not enforce compliance, with notice requirements of new section
5103(a) and new § 3.159(b)). Although the Secretary asserts that the
veteran \"was amply represented and additional evidence had been
submitted in support of his claim\" and that \"it would appear that
\[he\] had not overlooked any advantageous evidence which would require
further direction by the Hearing Officer\" (Br. at 18), an express
showing of prejudice is not required under *Quartuccio*, *supra*, and
should not be. As this Court has stated in numerous dispositions in
reliance on *Quartuccio*, the VCAA has imposed additional notice
obligations on the Secretary, and it is not for the Secretary or this
Court to predict what evidentiary development may or may not result from
such notice. *Cf. Charles* and *Quartuccio*, both *supra*;
*Sanchez-Benitez v. Principi*, 259 F.3d 1356, 1363 (Fed. Cir. 2001)
(vacating Court decision that determined, on basis of record before
Court, that remand and further development would not aid appellant in
prevailing on issue not yet addressed by Board). Because the Court
recognizes the possibility that, once given proper notice, the appellant
may be able to provide VA with evidence pertinent to his EED claim, it
would be pure speculation for the Court to conclude that the appellant
will not obtain such evidence and that VA\'s errors were therefore
nonprejudicial. *See* 38 U.S.C. § 7261(b)(2) (as amended by Veterans
Benefits Act of 2002, Pub. L. No. 107-330, § 401(b), 116 Stat. 2820,
2832 (Dec. 6, 2002)). Based on this rationale, any argument that there
is no evidence that supports the existence of a document dated before
the June 6, 1991, claim to reopen but after the May 15, 1981, prior
final decision is similarly unavailing, because it would also be pure
speculation for the Court to reach a conclusion as to what information
and evidence might have been produced had the correct notice been given.

***C. CUE***

An RO decision that has become final, as has the May 1981 RO decision at
issue here, generally may not be reversed or amended in the absence of
CUE. *See* 38 U.S.C. § 5109A (codifying into law VA regulation 38 C.F.R.
§ 3.105(a)); 38 C.F.R. § 3.105(a) (2002). A finding of CUE has the
following effect on the prior final decision:

> 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:

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

*Russell*, 3 Vet.App. 310, 313-14 (1992) (en banc); *see also* *Bustos
v. West*, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting the
\"manifestly changed the outcome\" language in *Russell*, *supra*),
*cert. denied*, 528 U.S. 967 (1999). In its recent en banc opinion in
*Cook v. Principi*, the U.S. Court of Appeals for the Federal Circuit
reiterated its holding in *Hayre v. West*, 188 F.3d 1327 (Fed. Cir.
1999), which *Cook* overruled on other grounds, that the Secretary\'s
breach of the duty to assist in denying a claim does not constitute CUE.
*Cook*, 318 F.3d 1334, 1336-47 (Fed. Cir. 2002) (rehearing en banc),
*reh\'g denied*, No. 00-7171, 2003 WL 459755 (Fed. Cir. Feb. 3, 2002),
*petition for cert. filed*, No. 02-1317 (Feb. 28, 2003). \"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 (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 instead must
have been the subject of a final prior BVA adjudication. *Russell*,
3 Vet.App. at 314-15. When the Court considers the appeal of a BVA
determination that there was no CUE in a prior final RO decision, the
Court\'s review is limited to deciding whether the Board\'s conclusion
is \"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law\", 38 U.S.C. § 7261(a)(3)(A), and whether it is
supported by an adequate statement of \"reasons or bases\", 38 U.S.C.
§ 7104(d)(1). *See Beyrle v. Brown*, 9 Vet.App. 24 (1996); *Eddy
v. Brown*, 9 Vet.App. 52, 57 (1996); *Damrel*, 6 Vet.App. at 246;
*Russell*, 3 Vet.App. at 315.

In the BVA decision here on appeal, the Board determined that there was
no CUE in the May 1981 RO decision. Therefore, the issue is properly
raised before this Court. *See Russell*, 3 Vet.App. at 314-315. The
Board considered the veteran\'s argument that \"the May 1981 \[RO\]
decision contained CUE in that the RO had failed to consider the
provisions of 38 U.S.C. § 1154(b), regarding combat veterans\", and
concluded:

> \[T\]he Board notes that the May 1981 \[RO\] decision contains a
> reference to the veteran\'s Purple Heart award, and as such, it
> appears that the RO considered the veteran\'s combat service. However,
> even accepting that the veteran was exposed to acoustic trauma during
> service, the evidence at the time of the May 1981 \[RO\] decision
> simply did not contain a medical opinion relating any current hearing
> loss to the veteran\'s military service.

R. at 5. Section 1154(b) provides in pertinent part:

> \(b\) In the case of any veteran who engaged in combat with the enemy
> in active service . . . during a period of war . . . , the Secretary
> shall accept as sufficient proof of service\[\]connection of any
> disease or injury alleged to have been incurred in or aggravated by
> such service satisfactory lay or other evidence of service incurrence
> or aggravation of such injury or disease, if consistent with the
> circumstances, conditions, or hardships of such service,
> notwithstanding the fact that there is no official record of such
> incurrence or aggravation in such service, and, to that end, shall
> resolve every reasonable doubt in favor of the veteran. Service\[\]
> connection of such injury or disease may be rebutted by clear and
> convincing evidence to the contrary. The reasons for granting or
> denying service\[\]connection in each case shall be recorded in full.

38 U.S.C. § 1154(b). In 1981, an identical provision appeared at 38
U.S.C. § 354(b) (1976).

As stated in part II.A., above, the Board is required to consider, and
discuss in its decision, all \"potentially applicable\" provisions of
law and regulation, as well as to include in its decision an adequate
written statement of reasons or bases for its findings and conclusions
on all material issues of fact and law presented on the record.
38 U.S.C. § 7104(a), (d)(1); *Weaver*, *Sanden*, *Allday*, *Schafrath*,
and *Gilbert*, all *supra*. In the instant case, the Board erred by
failing to provide an adequate statement of reasons or bases for its
conclusion that in its May 1981 decision the \"RO considered the
veteran\'s combat service\" (R. at 5); specifically, the Board relied
solely on the RO\'s ***mention*** of the veteran\'s Purple Heart award
as evidence that it so \"considered\" (R. at 5), without evaluating
whether or not the RO had adequately considered, as section 354(b) then
mandated (and as section 1154(b) now mandates) that it must, whether
there was \"satisfactory lay or other evidence of service incurrence or
aggravation . . . notwithstanding the fact that there is no official
record of such incurrence or aggravation in such service\", 38 U.S.C.
§ 354(b) (1976); 38 U.S.C. § 1154(b). *See* 38 U.S.C. § 7104(a), (d)(1);
*cf.* R. at 167-68 (November 1995 BVA decision where Board applied
section 1154 in light of veteran\'s combat service). Irrespective of
that error, however, the Board correctly concluded that \"the evidence
at the time of the May 1981 \[RO\] decision simply did not contain a
medical opinion relating any current hearing loss to the veteran\'s
military service\" (R. at 5); such a medical nexus opinion is required
in order for service connection of the veteran\'s hearing loss to be
established. *See* 38 U.S.C. § 354(b) (1976); 38 U.S.C. § 1154(b);
*Clyburn v. West*, 12 Vet.App. 296, 303 (1999) (holding that \"the
provisions of section 1154(b) do not provide a substitute for
medical-nexus evidence, but rather serve only to reduce the evidentiary
burden for combat veterans with respect to the second *Caluza*
requirement, \[that is,\] the submission of evidence of incurrence or
aggravation of an injury or disease in service\", and citing *Wade v.
West*, 11 Vet.App. 302, 305 (1998) (making same holding \"pursuant to
\[section\] 1154(b) and *Collette* \[*v. Brown*, 82 F.3d 389 (Fed. Cir.
1996)\]), and *Arms v. West*, 12 Vet.App. 188, 194 (1999)). Therefore,
because the veteran could not possibly prevail on his hearing-loss claim
in the absence of any such medical evidence, the evidence before the RO
in May 1981 was \"overwhelming\[ly\]\" against his claim and the
Board\'s reasons-or-bases error in not discussing section 354(b) is thus
nonprejudicial error under 38 U.S.C. § 7261(b)(2). *Soyini
v. Derwinski*, 1 Vet.App. 540, 546 (1991); *see Clyburn*, *supra*
(holding that failure to discuss section 1154(b) was nonprejudicial
error because of lack of medical evidence connecting in-service
incurrence of combat veteran\'s knee condition to current knee
disability).

The Court notes that, contrary to the appellant\'s contentions, the
Board did not \"change\[\] the issues on \[his\] appeal\" (Br. at 8),
because the appellant himself raised the issue of CUE in an October 1998
statement-in-support-of-claim form in which he requested an EED: \"I ask
that . . . ***VA consider the previous final decision a product of clear
and unmistakable error***\" (R. at 192 (emphasis added)). However, the
Board should not have proceeded to adjudicate the CUE claim in the first
instance without offering to remand the question to the RO. *See Sutton*
*v. Brown*, 9 Vet.App. 553, 564-70 (1996); *Marsh v. West*, 11 Vet.App.
468, 471 (1998) (\"At the very least, the Board was obligated to ask the
veteran whether he objected to the Board\'s adjudication of the NOD
jurisdictional issue in the first instance and to include in the
statement of reasons or bases for its decision an explanation as to why
such adjudication in the first instance was not prejudicial to him.\").
That error, unlike the reasons-or-bases defect in the Board decision,
cannot be considered nonprejudicial under 38 U.S.C. § 7261(b)(2),
because we cannot decide that the veteran could not possibly have
prevailed on the claim had the matter been sent back to the RO for
initial CUE adjudication. Specifically, because one of the documents on
which the Board principally relied in reopening and awarding the
appellant\'s claim for service connection for bilateral hearing loss in
November 1995 was the February 1977 VA medical record referring to the
veteran\'s \"grenade wound to the head\" during World War II and
\"subsequent hearing loss, most severe in the right ear\" that was
\"confirmed during \[that\] hospitalization\" (R. at 63; *see* R. at
166-67), it is possible that initial adjudication of the veteran\'s
claim by the RO could have precipitated further claim-development action
that would have discovered that evidence and resulted in a favorable
determination of his claim. It would be pure speculation to conclude
otherwise. *Cf.* 38 U.S.C. § 7261 (b)(2). Thus, the Court will vacate
the Board decision on this ground as well.

As for the appellant\'s contentions regarding the application of the
VCAA notice provisions to his CUE claim (Reply at 3-4), the Court has
held that these provisions do not apply to CUE claims. *Parker v.
Principi*, 15 Vet.App. 407, 412 (2002); *Livesay v. Principi*,
15 Vet.App. 165, 179 (2001) (en banc); *see also* *Juarez v. Principi*,
15 Vet.App. 518, 520-21 (2002).

**III. Conclusion**

Upon consideration of the foregoing analysis, the ROA, and the parties\'
pleadings, the Court will vacate the February 2001 Board decision and
remand the matter for expeditious further development and issuance of a
readjudicated decision supported by an adequate statement of reasons or
bases, *see* 38 U.S.C. §§ 1110, 5100, 5103, 5103A, 5106, 5107, 5109A,
7104(a), (d)(1); 38 C.F.R. §§ 3.105, 3.159(b), (c), 3.400(q)(1)(ii),
(r); 38 C.F.R. §§ 4.85, 4.87a (1980); *Charles* and *Quartuccio*, both
*supra*; *Fletcher* *v. Derwinski*, 1 Vet.App. 394, 397 (1991), all
consistent with this opinion and in accordance with section 302 of the
Veterans\' Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (found at 38 U.S.C. § 5101 note) (requiring
Secretary to provide for \"expeditious treatment\" for claims remanded
by BVA or the Court) \[hereinafter VBIA § 302\]; *see Vargas-Gonzalez v.
Principi*, 15 Vet.App. 222, 225-30 (2001) (holding that VBIA § 302
applies to all elements of a claim remanded by Court or Board), and with
all applicable law and regulation. *See Allday*, 7 Vet.App. at 533‑34.
On remand, the appellant will be free to submit additional evidence and
argument on the remanded claim in accordance with *Kutscherousky
v. West*, 12 Vet.App. 369, 372-73 (1999) (per curiam order) (concluding
that an appellant is entitled, until 90 days after Board mails
postremand notice to appellant, to submit additional evidence and
argument or to request hearing on appeal, at which appellant may submit
new evidence), and the Board is required to consider any such evidence
and argument. *See Kay v. Principi*, 16 Vet.App. 529, 534 (2002). A
remand by this Court or by the Board confers on an appellant the right
to VA compliance with the terms of the remand order and imposes on the
Secretary a concomitant duty to ensure compliance with those terms. *See
Stegall v. West*, 11 Vet.App. 268, 271 (1998). A final decision by the
Board following the remand herein ordered will constitute a new decision
that, if adverse, may be appealed to this Court only upon the filing of
a new Notice of Appeal with the Court not later than 120 days after the
date on which notice of the Board\'s new final decision is mailed to the
appellant. *See Marsh*, 11 Vet.App. at 472.

VACATED AND REMANDED.