## United States Court of Appeals for the Federal Circuit

02-7358

BRUCE E. LANE,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

> Respondent-Appellee.

[Kenneth M. Carpenter]{.underline}, Carpenter, Chartered of Topeka,
Kansas, for claimant-appellant.

[Kyle E. Chadwick]{.underline}, Trial Attorney, Commercial Litigation
Branch, Civil Division, Department of Justice, of Washington, DC, for
respondent-appellee. With him on the brief were [David M.
Cohen]{.underline}, Director; and [Martin F. Hockey, Jr.]{.underline},
Senior Trial Counsel. Of counsel on the brief were [Richard J.
Hipolit]{.underline}, Deputy Assistant General Counsel; and [Jamie L.
Mueller]{.underline}, Attorney, Department of Veterans Affairs, of
Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge John J. Farley, III

United States Court of Appeals for the Federal Circuit

02-7358

BRUCE E. LANE,

> Claimant-Appellant,

v\.

Anthony J. Principi, SECRETARY OF VETERANS AFFAIRS,

> Respondent-Appellee.

[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

DECIDED: August 7, 2003

[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

Before LOURIE, SCHALL, and PROST, [Circuit Judges]{.underline}.

SCHALL, [Circuit Judge]{.underline}.

Bruce E. Lane served in the United States Army (\'\'Army\'\'). Following
his discharge, he applied to the Department of Veterans Affairs
(\'\'VA\'\') for benefits. A VA Regional Office (\'\'RO\'\') determined
that he was not entitled to benefits because of the character of his
discharge. Mr. Lane appealed the RO\'s decision to the Board of
Veterans\' Appeals (\'\'Board\'\'), which affirmed the RO\'s decision.
[See]{.underline} [In re Lane]{.underline}, No. C26 873 648, slip op. at
3 (B.V.A. July 21, 1997) (\'\'[Lane I]{.underline}\'\'). Mr. Lane then
filed a motion with the Board, alleging that its decision in [Lane
I]{.underline} contained clear and unmistakable error (\'\'CUE\'\').
Following the Board\'s denial of his motion, [see]{.underline} [In re
Lane]{.underline}, No. C26 873 648, slip op. at 17 (B.V.A. July 26,
1999) (\'\'[Lane II]{.underline}\'\'), Mr. Lane appealed to the United
States Court of Appeals for Veterans Claims (\'\'Veterans Court\'\'),
which sustained the Board\'s decision, [see]{.underline} [Lane v.
Principi]{.underline}, 16 Vet. App. 78 (2002) (\'\'[Lane
III]{.underline}\'\'). Mr. Lane now appeals to us. We affirm.

BACKGROUND

I.

Mr. Lane served on active duty in the Army from September of 1967 to
February of 1971. His service included a tour in Vietnam from March of
1968 to March of 1969. After his return from Vietnam, Mr. Lane went
absent without official leave (\'\'AWOL\'\') for a total of 392 days,
including one period of 190 consecutive days. As a result, he was
discharged from the service on February 3, 1971 \'\'under other than
honorable conditions.\'\'

Mr. Lane\'s service medical records reflect that he sought treatment for
sleeplessness in October of 1969 and March of 1970. In addition, during
his separation medical examination, he indicated that he had experienced
\'\'Frequent Trouble Sleeping\'\' and \'\'Frequent or Terrifying
Nightmares.\'\' He also indicated that he had \'\'Attempted Suicide.\'\'
At the same time, he denied ever having \'\'Nervous Trouble of Any
Sort\'\' or \'\'Any Drug or Narcotic Habit.\'\'

Following his discharge, Mr. Lane applied for VA benefits. In June of
1971, the Los Angeles RO, referring to Mr. Lane\'s record of having been
AWOL, determined that Mr. Lane\'s discharge was under other than
honorable conditions and, as such, was a bar to benefits. Subsequently,
however, in May of 1976, pursuant to a Presidential Proclamation, Mr.
Lane received executive clemency and a Clemency Discharge. Thereafter,
in February of 1977, the Army Discharge Review Board, established
pursuant to 10 U.S.C. § 1553, upgraded his discharge to \'\'under
honorable conditions.\'\' That action was affirmed by the Discharge
Review Board in May of 1978.

In April of 1979, Mr. Lane once again applied for VA benefits, this time
to the San Diego RO. Considering his claim, the RO noted that Mr. Lane
initially had been discharged under other than honorable conditions for
having been AWOL, but that subsequently he had received a Clemency
Discharge. The RO determined, however, that the original dishonorable
discharge remained a bar to Mr. Lane\'s receiving VA benefits. Mr. Lane
filed a Notice of Disagreement, alleging that he was eligible for VA
benefits based on the upgraded discharge issued by the Army Discharge
Review Board. In October of 1980, the RO issued another decision
confirming its prior decision that Mr. Lane\'s discharge was
\'\'considered to have been issued under conditions which preclude\[d\]
payment of VA benefits.\'\' The decision noted that \'\'an honorable or
general discharge issued on or after October 8, 1977 by a Discharge
Review Board established under 10 USC \[§\] 1553 does not set aside any
bar to benefits imposed under VAR \[§\] 1012(C)(6) \[currently 38 C.F.R.
§ 3.12(c)(6)\].\'\' Mr. Lane then appealed to the Board.

II\.

In July of 1997, after the RO had apparently misplaced Mr. Lane\'s
appeal for many years, the Board affirmed the RO\'s decision. [Lane
I]{.underline}, slip op. at 9-10. The Board held that the character of
Mr. Lane\'s discharge barred him from receiving VA benefits.
[Id.]{.underline} at 3. In reaching this conclusion, the Board relied on
38 U.S.C. § 5303(a), which states, [inter]{.underline}
[alia]{.underline}:

> \(a\) . . . the discharge of any . . . person . . . on the basis of an
> absence without authority from active duty for a continuous period of
> at least one hundred and eighty days if such person was discharged
> under conditions other than honorable [unless such person demonstrates
> to the satisfaction of the Secretary that there are compelling
> circumstances to]{.underline} [warrant such prolonged unauthorized
> absence]{.underline} . . . shall bar all rights of such person under
> laws administered by the Secretary based upon the period of service
> from which discharged or dismissed, notwithstanding any action
> subsequent to the date of such discharge by a board established
> pursuant to section 1553 of title 10.

38 U.S.C. § 5303(a) (emphasis added). The Board stated that, pursuant to
section 5303(a), it had to determine whether there were compelling
circumstances to warrant Mr. Lane\'s prolonged unauthorized absence.
[Lane I]{.underline}, slip op. at 7-8. The Board turned to 38 C.F.R.
§ 3.12(c) for the factors it needed to consider to determine whether
such circumstances existed. [Id.]{.underline} at 8. Section 3.12(c)
provides, [inter]{.underline} [alia]{.underline}:

> \(c\) Benefits are not payable where the former service member was
> discharged or released under one of the following conditions:
>
> . . .
>
> \(6\) By reason of a discharge under other than honorable conditions
> issued as a result of an absence without official leave (AWOL) for a
> continuous period of at least 180 days. This bar to benefit
> entitlement does not apply if there are compelling circumstances to
> warrant the prolonged unauthorized absence. . . . [The following
> factors will be considered in determining whether there are compelling
> circumstances to warrant the prolonged unauthorized
> absence]{.underline}.
>
> \(i\) [Length and character of service exclusive of the period of
> prolonged AWOL]{.underline}. Service exclusive of the period of
> prolonged AWOL should generally be of such quality and length that it
> can be characterized as honest, faithful and meritorious and of
> benefit to the Nation.
>
> \(ii\) [Reasons for going AWOL]{.underline}. Reasons which are
> entitled to be given consideration when offered by the claimant
> include family emergencies or obligations, or similar types of
> obligations or duties owed to third parties. The reasons for going
> AWOL should be evaluated in terms of the person\'s age, cultural
> background, educational level and judgmental maturity. Consideration
> should be given to how the situation appeared to the person himself or
> herself, and not how the adjudicator might have reacted. Hardship or
> suffering incurred during overseas service, or as a result of combat
> wounds of other service-incurred or aggravated disability, is to be
> carefully and sympathetically considered in evaluating the person\'s
> state of mind at the time the prolonged AWOL period began.

38 C.F.R. § 3.12(c) (emphases added). The Board then applied section
5303(a) and section 3.12(c) to Mr. Lane\'s case to determine whether
there were compelling reasons for his AWOL periods. [Lane
I]{.underline}, slip op. at 9‑10. The Board noted that Mr. Lane pointed
to several reasons for going AWOL: when he enlisted in the Army, he was
told he would be an administrative clerk but was instead placed in the
infantry; he was given drugs by his fellow soldiers in Vietnam and
became dependent upon those drugs to escape his fear of combat; and he
experienced many traumatic incidents while serving in Vietnam. Mr. Lane
stated that, upon his return from Vietnam, his superiors treated him
like \'\'dirt,\'\' he was addicted to drugs and in a state of confusion,
and he could not cope with Army life. As a result, he started going
AWOL. [Id.]{.underline} at 6.

The Board found that Mr. Lane\'s service in Vietnam satisfied 38 C.F.R.
§ 3.12(c)(6)(i), in that it \'\'was \'of such quality and length that it
. . . \[could\] be characterized as honest, faithful and meritorious and
of benefit to the Nation.\'\'\' [Id.]{.underline} at 9. In addition, the
Board determined that Mr. Lane\'s combat service would have exposed him
to some hardship and/or suffering during overseas service.
[Id.]{.underline} The Board observed, however, that the \'\'objective
evidence of record, contemporaneous with . . . \[Mr. Lane\'s\] return
from overseas duty,\'\' failed to document the presence of any
circumstances which supported Mr. Lane\'s assertions regarding drug
dependence, difficulty with superiors, or an inability to fulfill his
duties as assigned due to being in a state of confusion.
[Id.]{.underline} The Board noted:

> There are no records of hospitalization or counseling reports to
> confirm treatment for any psychiatric symptomatology or substance
> abuse either upon return from overseas or during the time periods in
> which the appellant was absent from his unit. In fact, the first
> evidence of record to suggest either the presence of a psychiatric
> disorder or substance abuse . . . \[is dated\] 1992, many years after
> service discharge, and there is no indication within these records to
> establish the presence of an acquired psychiatric disorder or a
> substance abuse disorder in 1970 or 1971.

[Id.]{.underline} In sum, the Board found that, in light of the totality
of the evidence in the record, it could not conclude that \'\'there were
compelling circumstances present upon . . . \[Mr. Lane\'s\] return from
overseas which were of such severity as to force . . . \[him\] into
leaving his unit and thereby warrant his prolonged periods of
unauthorized absence.\'\' [Id.]{.underline} at 9-10. Accordingly, the
Board held that the character of Mr. Lane\'s discharge from service was
a bar to VA benefits. [Id.]{.underline} at 10.

III\.

Mr. Lane filed a motion with the Board alleging that its decision in
[Lane I]{.underline} contained CUE. Mr. Lane argued, [inter]{.underline}
[alia]{.underline}, that the Board erred when it failed to give proper
weight and consideration to the underlying reason for his unauthorized
absences in accordance with 38 C.F.R. § 3.12(c)(6)(i) and (ii). He
asserted that the Board did not carefully and sympathetically consider,
[from his point of view]{.underline}, as required by section
3.12(c)(6)(ii), the factors that influenced him to go AWOL, such as his
youth and immaturity, his problems with drugs and alcohol, and his
subsequent development of psychiatric disabilities. Mr. Lane contended
that the Board\'s use of an \'\'objective evidence\'\' standard to
evaluate his alleged reasons for going AWOL was improper. He argued that
the regulation did not mandate an objective standard of proof, and
hence, because the regulation referred to considering the veteran\'s
situation from the veteran\'s point of view, it was improper for the
Board to use such a standard.

The Board denied Mr. Lane\'s motion, holding that its decision in [Lane
I]{.underline} did not contain CUE. [Lane II]{.underline}, slip op. at
17. The Board noted that under 38 U.S.C. § 7111(a), a Board decision is
subject to revision on the grounds of CUE and must be reversed or
revised if the evidence establishes such error.[^1] [Id.]{.underline} at
10. The Board observed that 38 C.F.R. § 3.12(c)(6)(ii) requires the
adjudicator to consider \'\'[how the situation appeared to the veteran
himself]{.underline}\'\' when evaluating whether compelling
circumstances justified periods of AWOL. [Id.]{.underline} at 15. The
Board noted, however, that this evaluation does \'\'not equate to what
is essentially the veteran\'s belief that he can offer any number of
\'compelling circumstances\' without regard to establishing an
evidentiary basis for same.\'\' [Id.]{.underline} at 16. It stated:

> While consideration of the \'\'compelling circumstances\'\' . . . must
> be from the veteran\'s point of view, it must be presumed that the
> veteran must in some manner back up his claim with some evidence
> because the regulation is silent as to establishing what kind of proof
> is needed to successfully plead one or more compelling circumstances.
> Consideration of one or more factors giving rise to the compelling
> circumstances from the veteran\'s point of view would only then apply
> when a factor was established in a factual sense. The Board
> acknowledges that in the typical case, a veteran\'s \'\'age\'\' is
> easily ascertained by official documents in the file, but since the
> regulation refers to age in the context of more subjective terms like
> one\'s \'\'judgmental maturity,\'\' it is logical to conclude that the
> regulation intends to impart a broad framework from which to judge the
> case. Hence, in the Board\'s view, section 3.12(c)(6)(ii) can be
> construed to allow the Board to examine the record as a whole and
> determine whether the evidence supports the veteran\'s claim that one
> or more of these factors excused his unauthorized absences. As a
> result, some cases may be supported by testimonial evidence alone
> whereas others may demand corroborating evidence.

[Id.]{.underline} The Board concluded that the Board in [Lane
I]{.underline} had considered the veteran\'s circumstances, but that
because it had found no evidence in the record to show how any of the
claimed circumstances played a significant role in the prolonged AWOL
periods, the Board had not committed CUE in determining that the
evidence as a whole did not support Mr. Lane\'s claim. [Id.]{.underline}
at 16-17.

IV\.

Mr. Lane appealed the Board\'s decision in [Lane II]{.underline} to the
Veterans Court. In his appeal, he argued that the standard of review in
an appeal involving an unsuccessful collateral challenge to a previously
final Board decision requires \'\'two separate and distinct review
processes.\'\' He contended that in reviewing the rejection of a CUE
challenge, the Veterans Court should [first]{.underline} determine
whether the Board properly reviewed the collateral challenge and
supported its decision with an adequate statement of reasons or bases.
He argued that if the court finds that the Board did meet that standard,
it [then]{.underline} should conduct a [de]{.underline}
[novo]{.underline} review of the merits of the collateral challenge
under 38 U.S.C. § 7261(a)(1), because a collateral challenge presents a
question of law. Section 7261(a) provides, [inter]{.underline}
[alia]{.underline}:

> \(a\) In any action brought under this chapter, the Court of Appeals
> for Veterans Claims, to the extent necessary to its decision and when
> presented, shall\--
>
> > \(1\) [decide all relevant questions of law, interpret
> > constitutional, statutory, and regulatory provisions]{.underline},
> > and determine the meaning or applicability of the terms of an action
> > of the Secretary;
>
> > \(2\) compel action of the Secretary unlawfully withheld or
> > unreasonably delayed;
>
> > \(3\) hold unlawful and set aside decisions, findings (other than
> > those described in clause (4) of this subsection), conclusions,
> > rules, and regulations issued or adopted by the Secretary, the Board
> > of Veterans\' Appeals, or the Chairman of the Board found to be---

(A) [arbitrary, capricious, an abuse of discretion, or otherwise not in
    > accordance with law]{.underline};

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or
    > in violation of a statutory right; or

(D) without observance of procedure required by law; and

> > \(4\) in the case of a finding of material fact adverse to the
> > claimant made in reaching a decision in a case before the Department
> > with respect to benefits under laws administered by the Secretary,
> > hold unlawful and set aside or reverse such finding if the finding
> > is clearly erroneous.

38 U.S.C. § 7261(a) (emphases added).

Turning to the merits, Mr. Lane objected to the Board\'s statement in
[Lane II]{.underline} that under 38 C.F.R. § 3.12(c)(6)(ii) \'\'it must
be presumed that the veteran must in some manner back up his claim with
some evidence because the regulation is silent as to establishing what
kind of proof is needed to successfully plead one or more compelling
circumstances.\'\' [See]{.underline} [Lane II]{.underline}, slip op. at
16. Mr. Lane argued that the Board did not cite to any authority for the
requirement of objective contemporaneous evidence; that no such
requirement could be found in the regulation; that the Board had created
an evidentiary presumption that did not exist in the law; and that in
fact the regulation contemplates a subjective standard of proof. The
Veterans Court rejected Mr. Lane\'s arguments and affirmed the decision
of the Board. [Lane III]{.underline}, 16 Vet. App. at 79.

Addressing its standard of review, the court stated that under 38 U.S.C.
§ 7261(a)(3)(A), its review of a Board decision denying a claim of CUE
in a prior Board decision is limited to determining \"whether the
Board\'s evaluation of . . . \[the claim\] was \'arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law,\' and
whether the decision is supported by an adequate statement of reasons or
bases.\" [Id.]{.underline} at 83 (citations omitted). The court further
stated that \'\'\[i\]f the Board articulates a satisfactory explanation
for its decision, \'including a rational connection between the facts
found and the choice made, the Court must affirm.\'\'\'
[Id.]{.underline} (quoting [Jordan v. Brown]{.underline}, 10 Vet. App.
171, 175 (1997)). The court noted that although it has held that it will
conduct a [de]{.underline} [novo]{.underline} review of whether a viable
CUE allegation was presented to the Board, it has consistently ruled
that the question of whether the Board erred in determining that a prior
decision did not contain CUE is reviewed by the court under the
\'\'arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law\'\' standard of review set forth in section
7261(a)(3)(A). [Id.]{.underline} at 83-84 (citations omitted).

The Veterans Court then turned to Mr. Lane\'s arguments regarding the
Board\'s interpretation of 38 C.F.R. § 3.12(c)(6). It noted that Mr.
Lane was arguing in essence that the Board had erred in requiring
objective contemporaneous evidence of his circumstances and in looking
to the evidence of record as a whole to determine whether there was
support for his stated reasons for going AWOL. [Id.]{.underline} at 84.
In rejecting this argument, the court observed: \'\'neither the statute
nor the implementing regulation directs the adjudicator simply to accept
any and all reasoning from a claimant.\'\' [Id.]{.underline} If so
construed, noted the court, the claimant would impermissibly become the
final adjudicator of his own claim. [Id.]{.underline} Instead, the court
observed, section 5303(a) \'\'directs that a claimant \'demonstrate\[ \]
to the satisfaction of the Secretary that there are compelling
circumstances,\' suggesting a requirement of some proof of the offered
circumstances and giving the Secretary considerable, although not
unfettered, discretion in weighing that proof.\'\' [Id.]{.underline} at
84-85 (citations omitted).

The court stated that \'\'the regulation \[also\] requires that the
reasons offered be \'evaluated\' in light of the veteran\'s age,
background, and maturity, and that the particular hardships, as they
appeared to the veteran, be \'carefully and sympathetically considered\'
in evaluating his state of mind at the time of his absences.\'\'
[Id.]{.underline} at 85 (citing 38 C.F.R. § 3.12(c)(6)). In order to
\'\'evaluate\'\' and \'\'consider,\'\' noted the court, it is reasonable
that the adjudicator look to factors other than the veteran\'s own
statements as to why he went AWOL and that it consider the totality of
the evidence of record. [Id.]{.underline} The court then observed that
it was evident from its decision in [Lane I]{.underline} that the Board
had considered the reasons offered by Mr. Lane for his extended AWOL
periods but had determined that other evidence of record did not
adequately support Mr. Lane\'s statements and that, without such
support, those statements did not demonstrate to the Secretary\'s
satisfaction compelling circumstances to warrant the \'\'prolonged
unauthorized absence.\'\' [Id.]{.underline} (citations omitted). The
court stated that, in reviewing its decision in [Lane I]{.underline} for
CUE, the Board in [Lane II]{.underline} had construed section 3.12(c)(6)
as requiring some type of evaluation by the adjudicator of the
veteran\'s offered reasons for going AWOL. The court further stated that
the Board had adequately explained its reasoning for its construction of
the regulation and had determined that the 1997 Board decision was not
in error. [Id.]{.underline} The court concluded:

> Because we interpret \'\'demonstrate\'\' to permit the Secretary,
> based upon the facts of a particular case, to require that a claimant
> do more than merely state that his or her particular situation was
> \'\'compelling,\'\' and \'\'evaluate\'\' and \'\'consider\'\' to
> permit the Secretary to do more than merely accept whatever a claimant
> might offer, we hold that the 1999 Board decision was not
> \'\'arbitrary, capricious, an abuse of discretion, or otherwise not in
> accordance with law,\'\' and that the Board\'s statement of reasons or
> bases in that decision, as described above, was adequate.

[Id.]{.underline} The Veterans Court therefore affirmed the decision of
the Board in [Lane II]{.underline}. [Id.]{.underline} at 87. Mr. Lane
now appeals to us.

ANALYSIS

I.

The jurisdiction of this court to review decisions of the Veterans Court
is limited by statute. 38 U.S.C. § 7292; [Forshey v.
Principi]{.underline}, 284 F.3d 1335, 1338 (Fed. Cir. 2002)
([en]{.underline} [banc]{.underline}). We have \'\'exclusive
jurisdiction to review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof brought under
\[section 7292\], and to interpret constitutional and statutory
provisions, to the extent presented and necessary to a decision.\'\' 38
U.S.C. § 7292(c). Questions regarding the validity and interpretation of
constitutional and statutory provisions are questions of law to be
reviewed without deference. [Santana-Venegas v. Principi]{.underline},
314 F.3d 1293, 1296 (Fed. Cir. 2002). We may only set aside
interpretations of regulations relied upon in a decision of the Veterans
Court that we find to be: \'\'(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; (C) in excess of
statutory jurisdiction, authority, or limitations, or in violation of a
statutory right; or (D) without observance of procedure required by
law.\'\' 38 U.S.C. § 7292(d)(1).

On appeal, Mr. Lane asserts that the Veterans Court misinterpreted both
38 U.S.C. § 7111 and 38 C.F.R. § 3.12(c)(6)(ii). Because Mr. Lane
challenges the interpretation of a statute and a regulation, we have
jurisdiction pursuant to 38 U.S.C. § 7292. We address Mr. Lane\'s
contentions in turn.

II\.

Mr. Lane argues that the Veterans Court erred when it reviewed the
Board\'s decision in [Lane II]{.underline} under 38 U.S.C.
§ 7261(a)(3)(A) instead of under 38 U.S.C. § 7261(a)(1). He contends
that where a Board CUE claim under 38 U.S.C. § 7111 is fact based, then
the deferential standard of review of section 7261(a)(3)(A) is
appropriate. However, he asserts, if such a claim involves the
interpretation of a regulation as it existed at the time of the original
Board decision, it presents only a question of law which the court
should review under section 7261(a)(1) without deference to the
conclusions of the Board. Thus, Mr. Lane states that since he argued
that the Board misinterpreted 38 C.F.R. § 3.12(c)(6)(ii), the regulation
dealing with character of discharge, his appeal presented an issue of
law that should have been reviewed by the Veterans Court under the
[de]{.underline} [novo]{.underline} standard of section 7261(a)(1)
rather than under the deferential standard of section 7261(a)(3)(A). He
urges us to reverse and remand so that the Veterans Court can properly
adjudicate his appeal of the Board\'s denial of his CUE claim.

The government responds that the Veterans Court\'s use of the standard
of review specified in section 7261(a)(3)(A) was appropriate. It
contends that although the standard recited by the court is a
deferential one, it did not preclude the court from reviewing
[de]{.underline} [novo]{.underline} pure questions of law decided by the
Board in connection with Mr. Lane\'s CUE claim. It argues that a
standard of review, such as that specified in section 7261(a)(3)(A),
which freely permits correction of purely legal errors, but which
accords due deference to determinations having factual aspects,
appropriately accounts for the factual nature of CUE claims. The
government adds that the Veterans Court properly applied section
7261(a)(3)(A) in this case by reviewing [de]{.underline}
[novo]{.underline} the Board\'s interpretation of 38 C.F.R. §
3.12(c)(6).

Because interpretation of a statute or regulation is a question of law,
[see]{.underline}, [e.g.]{.underline}, [Jensen v. Brown]{.underline}, 19
F.3d 1413, 1415 (Fed. Cir. 1994), we hold that the Veterans Court should
review [de]{.underline} [novo]{.underline} the Board\'s interpretation
of a regulation in the setting of a section 7111 CUE claim. However, we
see no need to decide the purely academic question of whether the court
conducts its [de]{.underline} [novo]{.underline} review under 38 U.S.C §
7261(a)(1) or 7261(a)(3)(A). In the first place, both section 7261(a)(1)
(\'\'decide all relevant questions of law\'\') and section 7261(a)(3)(A)
(\'\'otherwise not in accordance with law\'\') necessarily contemplate
[de]{.underline} [novo]{.underline} review of a legal issue such as the
Board\'s interpretation of a regulation. Most importantly, however, in
this case, after citing section 7261(a)(3)(A)\'s standard of review, the
Veterans Court addressed Mr. Lane\'s arguments on appeal regarding
section 3.12(c)(6)(ii), and although it did not explicitly so state in
its opinion, it plainly did review [de]{.underline} [novo]{.underline}
the Board\'s interpretation of the regulation. The court stated that 38
U.S.C. § 5303(a) requires that \'\'a claimant \'demonstrate\[ \] to the
satisfaction of the Secretary that there are compelling circumstances,\'
suggesting a requirement of some proof of the offered circumstances and
giving the Secretary considerable, although not unfettered, discretion
in weighing that proof.\'\' [Lane III]{.underline}, 16 Vet. App. at
84-85. The court also stated that, under section 3.12(c)(6)(ii), the
reasons given by a veteran for having been AWOL are to be
\'\'evaluated\'\' and \'\'considered,\'\' and it concluded that it was
reasonable for the Board to look to the totality of the record in order
to do so. [Id.]{.underline} at 85. Finally, the court stated:

> [\[W\]e]{.underline} [interpret]{.underline} \"demonstrate\" to permit
> the Secretary, based upon the facts of a particular case, to require
> that a claimant do more than merely state that his or her particular
> situation was \"compelling,\" and \"evaluate\" and \"consider\" to
> permit the Secretary to do more than merely accept whatever a claimant
> might offer. . . .

[Id.]{.underline} (emphasis added). Thus, the court held that, in view
of the language of 38 U.S.C. § 5303(a), the Board did not err in
interpreting 38 C.F.R. § 3.12(c)(6), the implementing regulation, as
requiring consideration of the \'\'record as a whole.\'\' Under these
circumstances, it is clear that the Veterans Court did review
[de]{.underline} [novo]{.underline} the Board\'s interpretation of
section 3.12(c)(6). In other words, Mr. Lane received the kind of review
to which he was entitled.

III\.

Mr. Lane\'s second argument is that the Veterans Court misinterpreted 38
C.F.R. § 3.12(c)(6)(ii) by holding that it was reasonable for the Board,
when ruling on his claim for VA benefits under the regulation, to look
to the totality of the circumstances, including factors other than his
own statements. He argues that, to the contrary, the plain language of
the regulation requires the Board to consider the \'\'compelling
circumstances\'\' from the \'\'veteran\'s point of view.\'\'

For its part, the government argues that the Veterans Court and the
Board\'s interpretation of section 3.12(c)(6)(ii) is correct. The
government notes that the plain language of 38 U.S.C. § 5303(a), the
statute upon which the regulation is based, requires that \'\'compelling
circumstances\'\' be demonstrated \'\'to the satisfaction of the
Secretary.\'\' Moreover, the government contends, neither the statute
nor the regulation indicates that consideration of \'\'compelling
circumstances\'\' must be based solely on the claimant\'s own
statements. The government adds that such a rule would unduly restrict
the adjudication process and lead to absurd results.

We agree with the government and hold that the Veterans Court\'s
interpretation of section 3.12(c)(6)(ii) is correct. In our view, the
Veterans Court did not err by holding that under section 3.12(c)(6), the
Board can look to the totality of the circumstances, including factors
other than the veteran\'s own statements, to determine why the veteran
went AWOL.

\'\'To interpret a regulation, we . . . look at its plain language and
consider the terms in accordance with their common meaning.\'\'
[Lockheed Corp. v. Widnall]{.underline}, 113 F.3d 1225, 1227 (Fed. Cir.
1997) (citing [Perrin v. United States]{.underline}, 444 U.S. 37, 42
(1979)). Section 3.12(c)(6)(ii) states:

> \(ii\) Reasons for going AWOL. Reasons which are entitled to be given
> consideration when offered by the claimant include family emergencies
> or obligations, or similar types of obligations or duties owed to
> third parties. [The reasons for going AWOL should be evaluated in
> terms of the person\'s age, cultural background, educational level and
> judgmental maturity]{.underline}. [Consideration should be given to
> how the situation appeared to the person himself or herself, and not
> how the adjudicator might have reacted]{.underline}. Hardship or
> suffering incurred during overseas service, or as a result of combat
> wounds of other service-incurred or aggravated disability, [is to be
> carefully and sympathetically considered in evaluating the person\'s
> state of mind]{.underline} at the time the prolonged AWOL period
> began.

38 C.F.R. § 3.12(c)(6)(ii) (emphases added). The regulation requires
that the reasons offered by the veteran be \'\'evaluated\'\' in light of
the veteran\'s age, background, and maturity, and that the particular
hardships, as they appeared to the veteran, be \'\'carefully and
sympathetically considered\'\' in evaluating his state of mind at the
time of his absences. In order to \'\'evaluate\'\' and \'\'consider,\'\'
as required by the regulation, it is reasonable that the adjudicator be
able to look to factors other than the veteran\'s own statements as to
why he went AWOL. Stated differently, it is reasonable that the
adjudicator look to the totality of the evidence in the record.
Accordingly, like the Veterans Court, we interpret \'\'evaluated\'\' and
\'\'considered\'\' in the regulation as permitting the Secretary to look
to the totality of the evidence in the record, rather than merely
accepting whatever rationale a claimant might offer for periods of AWOL.
This interpretation is consistent with 38 U.S.C. § 5303(a), the statute
that the regulation implements. Section 5303(a) states,
[inter]{.underline} [alia]{.underline}, that:

> the discharge of any . . . person . . . on the basis of an absence
> without authority from active duty for a continuous period of at least
> one hundred and eighty days if such person was discharged under
> conditions other than honorable [unless such person demonstrates to
> the satisfaction of the Secretary that there are compelling
> circumstances to warrant such prolonged unauthorized
> absence]{.underline} . . . shall bar all rights of such person under
> laws administered by the Secretary based upon the period of service
> from which discharged or dismissed, notwithstanding any action
> subsequent to the date of such discharge by a board established
> pursuant to section 1553 of title 10.

38 U.S.C. § 5303(a) (emphasis added).

We agree with the Veterans Court that the statute \'\'directs \[the\]
claimant \[to\] \'demonstrate\[ \] to the satisfaction of the Secretary
that there are compelling circumstances,\' suggesting a requirement of
some proof of the offered circumstances and giving the Secretary
considerable, although not unfettered, discretion in weighing that
proof.\'\' [Lane III]{.underline}, 16 Vet. App. at 84-85. This statutory
directive is consistent with an interpretation of section 3.12(c)(6)(ii)
that allows the Secretary to look to the totality of the evidence in the
record to determine why the veteran went AWOL, rather than merely
accepting the veteran\'s statements. Thus, when the Board, in [Lane
I]{.underline}, sought to determine whether Mr. Lane had presented
\'\'compelling circumstances to warrant \[his\] prolonged unauthorized
absence,\'\' it was entirely appropriate for it to consider Mr. Lane\'s
statements, not in a vacuum, but in light of the objective evidence of
record. As noted, in rejecting Mr. Lane\'s claim, the Board pointed out
that there were \'\'no records of hospitalization or counseling reports
to confirm treatment for any psychiatric symptomatology or substance
abuse either upon return from overseas or during the time periods in
which the appellant was absent from his unit.\'\' [Lane I]{.underline},
slip op. at 9. In short, the Board properly considered whether Mr.
Lane\'s statements regarding \'\'how the situation appeared to
\[him\]\'\' had support in the relevant facts.

CONCLUSION

The Veterans Court properly reviewed [de]{.underline} [novo]{.underline}
the Board\'s interpretation of 38 C.F.R. § 3.12(c)(6)(ii). In addition,
the court did not err in holding that the Board correctly interpreted
section 3.12(c)(6)(ii) when it considered the \'\'record as a whole\'\'
in evaluating whether \'\'compelling circumstances\'\' excused Mr.
Lane\'s periods of AWOL. Accordingly, the decision of the Veterans Court
is

[AFFIRMED]{.underline}.

# 

[^1]: Section 7111(a) states: \'\'A decision by the Board is subject to
    revision on the grounds of clear and unmistakable error. If evidence
    establishes the error, the prior decision shall be reversed or
    revised.\'\' 38 U.S.C. § 7111(a).