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

[No]{.smallcaps}. 01-1202

[William P. Baxter, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

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

On Appeal from the Board of Veterans\' Appeals

(Decided January 6, 2004 )

*Daniel G. Krasnegor*, of Washington, D.C., was on the brief for the
appellant.

*Tim S. McClain*, General Counsel; *Joan E. Moriarty*, Acting Assistant
General Counsel; *Darryl A. Joe*, Acting Deputy Assistant General
Counsel; and *Erica M. Dornburg*, all of Washington, D.C., were on the
brief for the appellee.

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

GREENE, *Judge*: The veteran, William P. Baxter, appeals, through
counsel, a March 26, 2001, decision of the Board of Veterans\' Appeals
(Board) that denied him an effective date earlier than July 15, 1994,
for his Department of Veterans Affairs (VA) service-connected
degenerative disc disease of the lumbar spine. Record (R.) at 3. Mr.
Baxter contends that the Board\'s statement of reasons or bases for its
decision is inadequate because it did not discuss evidence that appeared
to show that the notice of an August 1970 VA regional office (RO)
decision was not mailed to his last known address, nor did it discuss
whether such a defect would render that 1970 RO decision nonfinal.
Appellant\'s (App.) Brief (Br.) at 8. He also maintains that the Board
decision lacks an adequate statement of reasons or bases because it did
not discuss whether he could achieve an earlier effective date based
upon clear and unmistakable error (CUE). App. Br. at 10-11. The
Secretary argues that the Board reviewed all the evidence of record and
provided an adequate statement of reasons or bases to support its
decision. Secretary\'s (Sec\'y) Br. at 6. This appeal is timely, and the
Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a)
and 7266. For the following reasons, the Board decision will be affirmed
in part and dismissed in part.

**I. FACTS**

Mr. Baxter served honorably in the U.S. Navy from August 1959 to
November 1960. R. at 12. According to his service medical records, he
was involved in a plane crash in September 1960. R. at 14-24. In March
1970, he filed a claim for VA service connection for a back injury
alleged to have been incurred in service. R. at 30-33. In August 1970,
an RO denied that claim; there is no evidence that Mr. Baxter appealed
that decision. *See* R. at 47-53.

During the next 24 years, Mr. Baxter made several unsuccessful attempts
to reopen his claim. R. at 50-53 (May 1976), R. at 57-58 (March 1977),
68-71 (April 1990); *see* 38 U.S.C. § 5108 (allowing for finally
disallowed claim to be reopened when new and material evidence is
presented). On July 15, 1994, he submitted a claim for service
connection for a back injury. R. at 75-78. After several adverse
decisions on that claim and Mr. Baxter\'s appeal to the Board, the
Board, in 1997, determined that the results of a 1996 VA medical
examination constituted new and material evidence to reopen his back
injury claim; the Board then reopened that claim and remanded it to the
RO for further assistance and development. R. at 136, 145-50.

In June 1998, the RO awarded Mr. Baxter service connection for
degenerative disc disease of the lumbar spine, at a disability rating of
60%, effective from July 15, 1994. R. at 186-88. On July 15, 1998, the
RO also awarded him an individual unemployability rating, effective from
July 15, 1994. R. at 197. Mr. Baxter filed a Notice of Disagreement
contending that the effective date for his service-connected back injury
should be the date of his discharge. R. at 201-02. After receiving a
Statement of the Case explaining that the effective date could not be
the date of his discharge because he had not filed a claim within one
year after that date, Mr. Baxter appealed to the Board asserting that
the effective date for the award of his benefits should be March 9,
1970, the date he first filed his claim. R. at 221. He asserted that his
\"claim for s\[ervice-\]c\[onnected\] injuries was the same then as it
was all other times I tried to open this claim.\" *Id.*

In the decision here on appeal, the Board found that the 1970 RO
decision that denied his claim had become final because he had not
appealed that decision. R. at 8. The Board also found that that claim
remained disallowed and final until it was reopened during the
adjudication of the claims he presented in 1994. *Id.* Based upon these
findings, the Board concluded that, under 38 U.S.C.§ 5110(a), the
effective date of an award based on a claim reopened after final
adjudication is the date based on the facts found but not earlier than
the date of receipt of application for reopening; thus, July 15, 1994,
was determined to be the earliest effective date for Mr. Baxter\'s
benefits. R. at 8-9. The Board also determined that the effective date
for his benefits could not be the date of discharge because he had not
presented to VA a claim for benefits within one year from that date.
*Id.*; *see* 38 U.S.C. § 5110(b).

On appeal, Mr. Baxter argues that the Board, in the decision under
review, did not address evidence that the RO in 1970 did not mail the
notice of the decision denying his claim to his last known address. App.
Br. at 8. He maintains that the Board decision lacks an adequate
statement of reasons or bases because it failed to address this matter
which, if found true, potentially could render the 1970 RO decision
pending at the time service connection was awarded. App. Br. at 9-10. In
his reply brief, Mr. Baxter further argues that evidence that the RO
decision was sent to the wrong address is, by itself, sufficient to
rebut the presumption of regularity, and that an allegation of
nonreceipt is not required. Reply Br. at 7.

Mr. Baxter also argues that \"*it appears* that the Board \[in the
decision under review\] concluded that based upon the evidence of record
at the time of the August 1970 decision, the veteran was entitled to
service connection for his back condition.\" App. Br. at 12 (emphasis
added). He contends that such a conclusion was a determination by the
Board that the August 1970 RO decision was clearly and unmistakably
erroneous, and, therefore, he maintains that the Board\'s statement of
reasons or bases is inadequate in that it failed to discuss the
possibility of an earlier effective date based upon CUE in that previous
RO decision. *Id.*

The Secretary argues that the Board\'s decision denying Mr. Baxter an
earlier effective date was supported by a plausible basis in the record
and should be affirmed. Sec\'y Br. at 10-11. He further argues that the
Board\'s statement of reasons or bases concerning the finality of the
1970 RO decision was adequate, in that, according to the record, notice
of the August 1970 decision was sent to the appellant\'s last known
address. *Id.* at 12. Additionally, the Secretary notes that Mr. Baxter
\"never alleges that notice was not received.\" *Id.* at 13. Finally, he
argues that the Court should not address Mr. Baxter\'s CUE argument
because it has been raised here for the first time on appeal. *Id.* at
17.

**II. ANALYSIS**

When rendering a decision, the Board is required to provide 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. *See* 38
U.S.C. §7104(d)(1). This Court has held \"that the \[Board must\]
articulate with reasonable clarity its \'reasons or bases\' for
decisions, and in order to facilitate judicial review, the Board must
identify those findings it deems crucial to its decision and account for
the evidence which it finds to be persuasive or unpersuasive.\" *Gilbert
v. Derwinski*, 1 Vet.App. 49, 57 (1990). Where the Board fails to meet
this obligation, the Court is precluded from effectively reviewing the
adjudication. *See Meeks v. Brown*, 5 Vet.App. 284, 288 (1993).

A. Presumption of Regularity

A claimant for VA benefits \"will be notified of any decision
authorizing the payment of benefit or disallowance of a claim.\" 38
C.F.R. § 3.103 (1970). *See also* 38 U.S.C. § 5104(a); 38 C.F.R. §§
3.103, 19.25 (2003). \"The Court has held that there is a presumption of
regularity that the Secretary properly discharged his official duties by
mailing a copy of a VA decision to the last known address of the
appellant . . . on the date that the decision was issued.\" *Woods v.
Gober*, 14 Vet.App. 214, 220 (2000). However, \"\[t\]he presumption of
regularity is not absolute; it may be rebutted by the submission of
\'clear evidence to the contrary\'.\" *Ashley v. Derwinski*, 2 Vet.App.
307, 309 (1992). \"\[I\]t is well established that the assertion of
nonreceipt, standing alone, does not rebut the presumption of regularity
in VA\'s mailing process.\" *Jones (Raymond H.) v. West*, 12 Vet.App.
98, 102 (1998). Once the presumption of regularity is rebutted, the
burden shifts to the Secretary to establish mailing of notice, in
accordance with our caselaw. *See Cross v. Brown*, 9 Vet.App. 18, 20
(1996). If the Secretary cannot satisfy this burden, the case remains
pending at that level until the defect is cured. *Id.*

Mr. Baxter argues that the Board did not address evidence that *appears*
to show that he was not notified at the proper address of the 1970 RO
denial of his claim. App. Br. at 8. After the Secretary noted that Mr.
Baxter has never actually alleged that he did not receive notice of the
1970 RO decision (Sec\'y Br. at 13), Mr. Baxter implicitly argues that
an allegation of nonreceipt is not required, and that evidence in the
record that an RO decision was sent to the wrong address is, by itself,
sufficient to rebut the presumption of regularity (Reply Br. at 7). Mr.
Baxter\'s arguments are unpersuasive.

Unless there are deficiencies with the content of the notice itself
(which Mr. Baxter does not here allege), if a claimant *actually
received* notice of an RO decision, he or she has been *properly
notified* of that decision. *See generally Woods*, 14 Vet.App. at 221.
Here, if Mr. Baxter actually received deficiency-free notice of the 1970
RO decision, there is and can be no breach of VA\'s duty to provide
notice and the presumption of regularity becomes a moot issue. In his
pleadings before this Court, Mr. Baxter has assiduously avoided
asserting that he never received notice of the 1970 RO decision denying
his claim. Indeed, the record is silent on his having *ever* asserting
that the notice was not received or that the notice was returned to VA
as undeliverable. We reject any argument by Mr. Baxter that would
require the Board to engage in an illogical exercise of explaining away
evidence regarding VA\'s compliance with the duty to provide notice when
*no one* has questioned its compliance. Thus, despite his efforts to the
contrary, Mr. Baxter cannot extricate the issue of nonreceipt of the RO
decision from the presumption-of-regularity question.

Indeed, the Court has said that an assertion of nonreceipt of notice,
standing alone, is insufficient to rebut the presumption of regularity
that VA mailed that notice. *See Jones (Raymond H.)*, *supra*.
Furthermore, in cases such as *Raymond H. Jones*, the Court stated that
an assertion that notice was not received must be coupled with
*additional* evidence tending to establish nonreceipt of that notice.
*Id.* Thus, although a claim that notice of an RO decision was not
received is insufficient by itself to rebut the presumption of
regularity, it is necessary in order to trigger the inquiry. Therefore,
we reject the appellant\'s attempt to trigger a rebuttal of the
presumption of regularity without asserting that he did not receive
notice of the RO decision. To decouple the presumption of regularity
from the very concept that its rebuttal was meant to establish would
amount to so much sophistry. Therefore, the Court holds that the Board
need not examine whether the presumption of regularity has been rebutted
unless and until an appellant, at a minimum, alleges that he did not
receive the document in question.

B. CUE

Mr. Baxter\'s argument that, in its statement of reasons or bases, the
Board should have discussed whether there was CUE in the 1970 RO
decision is not persuasive. App. Br. at 12. A request for revision of a
final decision on the basis of CUE \"is not a conventional appeal, but
rather is a request for revision of a decision by the Secretary.\"
*Haines v. West*, 154 F.3d 1298, 1300 (Fed. Cir. 1998), *cert. denied*,
526 U.S. 1016 (1999). A CUE motion may not be made with \"broad-brush
allegations\" but instead CUE must be alleged with specificity and,
unless the error would amount to CUE on its face, requires persuasive
reasoning as to why the result would have been \"manifestly different\"
but for the alleged error. *Fugo v. Brown*, 6 Vet.App. 40, 43-44 (1993).
The Court determines de novo whether a valid CUE motion has been
presented to the Board for consideration. *See Phillips v. Brown*,
10 Vet.App. 25, 30 (1997). Mr. Baxter does not point to any document in
the record to demonstrate that he ever alleged CUE in the 1970 RO
decision. Instead, he suggests that, based upon statements in the Board
decision regarding the 1970 RO decision, the Board *may* have concluded
that the RO committed CUE, and should have discussed that possibility.
App. Br. at 12. We will not expand our CUE jurisprudence to embrace this
unsupportable argument.

Mr. Baxter\'s attempt to assert a reasons-or-bases error in order to
raise a CUE matter is also rejected. He has failed to establish that the
Board had any duty in this case to raise a CUE motion sua sponte. (We
note that there is no consensus among the parties in this case, and the
Court makes no determination, that the Board statement underlying Mr.
Baxter\'s arguments on this point does, in fact, concede such error.
*See* Sec\'y Br. at 17 (\"\[R\]eview of the statement in context shows
that it represents a recitation of Appellant\'s contentions, and no
more.\"), 18 (\"Read in its entirety, the paragraph represents
paraphrasing of Appellant\'s contentions in support of an earlier
effective date.\")). Furthermore, even if Mr. Baxter had established
that the Board had such a duty, there is manifestly no prejudice to him
by the Board\'s failure to fulfill that duty. *See* 38 U.S.C. §
7261(b)(2) (Court shall \"take due account of the rule of prejudicial
error\"). Mr. Baxter\'s counsel has stated before the Court his belief
that there is the potential for a CUE motion in this case. He is not
precluded from filing a CUE motion before VA, and, indeed, could have
done so contemporaneously with the appeal in this case. It is beyond
argument that this Court is not the appropriate forum to make such a
motion in the first instance. *See Andre v. West*, 14 Vet.App. 7, 11
(2000) (per curiam order) (holding that CUE motion not raised to Board
on decision below was \"improperly and improvidently raised for the
first time before this Court\"), *aff\'d sub nom. Andre v. Principi*,
301 F.3d 1354 (Fed. Cir. 2002). We reject Mr. Baxter\'s attempt to bring
this issue to the Court through an assertion of a deficiency in the
Board\'s statement of reasons or bases.

Because there is no evidence showing that Mr. Baxter has first raised to
VA a specific allegation of CUE in the 1970 RO decision, the Court is
without jurisdiction to address this issue. *See* *Andre*, 14 Vet.App.
at 10-11 (holding Court lacked jurisdiction over CUE claim when no
Notice of Disagreement or final Board decision addressed specific CUE
theory); *Sondel v. Brown*, 6 Vet.App. 218, 220 (1994) (holding CUE
allegation made to Court for first time must be dismissed as improper
and improvidently raised).

**III. CONCLUSION**

Upon consideration of the foregoing analysis, the record on appeal, and
the parties\' pleadings, the Court affirms the March 26, 2001, Board
decision. That part of the appeal concerning Mr. Baxter\'s allegation,
initially raised to this Court, of CUE in the August 1970 RO decision is
dismissed.

AFFIRMED IN PART AND DISMISSED IN PART.