UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 01-575

BURDETT HUSTON, APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Decided September 14, 2004 )

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 also addressed 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.

The appeal to this Court was timely. See 38 U.S.C. §§ 7252(a) and 7266(a). On July 11, 2003, this

Court issued an opinion in this case, vacating the Board decision and remanding matters for further

development and readjudication. Huston v. Principi, 17 Vet.App. 195, 202-06 (2003). Specifically,

as to the appellant's claim for an earlier effective date (EED) based on a direct challenge to a June

1999 VARO decision (direct-appeal EED claim), the Court concluded that the Board erred by failing

to discuss the notice provisions of 38 U.S.C. § 5103(a), as amended by the Veterans Claims

Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-97, and that the
2

record on appeal (ROA) contained no specific notice to the appellant that met the standard

established bynew section 5103(a) and 38 C.F.R. § 3.159(b) (2002). Huston, 17 Vet.App. at 202-03.

The Court ordered that claim remanded to the Board in order to obtain compliance with those notice

provisions. The Court also ordered remanded to the Board the appellant's claim for an EED based

on CUE in a May 1981 RO decision (CUE claim). Id. at 203-06. The Court noted that the VCAA

notice provisions do not apply to CUE claims. Id. at 206.

The Secretary appealed this Court's opinion to the U.S. Court of Appeals for the Federal

Circuit (Federal Circuit), and the Federal Circuit subsequently vacated this Court's opinion and

remanded the matter for further proceedings consistent with its opinion in Conway v. Principi,

353 F.3d 1369 (Fed. Cir. 2004), which held that this Court is required to "'take due account of the

rule of prejudicial error' in all cases addressing the notice requirements in section 5103(a)." Conway,

353 F.3d. at 1375. On June 28, 2004, the Federal Circuit issued mandate, and the case is now back

before this Court. On July 9, 2004, the Secretary filed here a motion to stay proceedings pending

final disposition in this Court of McCutcheon v. Principi, No. 01-1027, and Conway v. Principi,

No. 01-0107. Thereafter, the appellant filed an opposition to the motion for a stay. For the reasons

that follow, the Court will vacate the Board decision as to the CUE claim and remand that matter for

readjudication. The Court will grant in part the Secretary's motion to stay proceedings – that is, with

respect to consideration of the direct-appeal EED claim, the Court will sever the appeal as to that

claim and defer consideration of it pending further order of the Court. 

I. Background

The veteran served honorably in the U.S. Army during World War II, from June 1941 until

September 1945. R. at 11. 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. R. at 72, 63, 11. On May 15,

1981, the RO 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
3

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 Forms 1-9 (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 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,
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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 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, RO

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
5

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

[RO] 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. 

II. Analysis

A. Parties' Contentions

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
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evidence necessary to develop the appellant's claim that the appellant 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 VCAA required that the Board

provide notice to the claimant that it was going to decide his claim based on CUE (Reply Br. 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)).

B. 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 appellant 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 appellant's NOD

filed in June 1981 and the SOC issued by the RO that same month had pertained to the appellant's

bilateral-hearing-loss claim, the May 1981 decision still would have become final on June 1, 1982,

because the appellant 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

appellant filed with the RO what the RO determined in September 1998 was an informal claim to
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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

May1994 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 appellant of that December 1995 RO decision in the ROA other than a letter dated January 10,

1996, that notified the appellant 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 "[appellant] 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 May 1981 RO decision contained CUE; and (2) 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. 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)
8

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). 

C. CUE Claim

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 en banc opinion in Cook v. Principi, 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), cert. denied,

539 U.S. 926 (2003). "A determination that there was [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
9

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); see Dobbin v. Principi, 15 Vet.App. 323 (2001) (discussing

"arbitrary and capricious" standard as applied to CUE claims); Damrel, supra, and whether it is

supported by an adequate statement of "reasons or bases", 38 U.S.C. § 7104(d)(1). See Beyrle v.

Brown, 9 Vet.App. 377, 382 (1996);see also Russell, 3 Vet.App. at 315; Eddy v. Brown, 9 Vet.App.

52, 57 (1996).

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 appellant'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 [appellant]'s Purple Heart award, and as such, it

appears that the RO considered the [appellant]'s combat service.

However, even accepting that the [appellant] was exposed to acoustic

trauma during service, the evidence at the time of the May 1981 [RO]

decision simplydid not contain a medical opinion relating any current

hearing loss to the [appellant]'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
10

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). 

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); see Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per

curiam order); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Sanden v. Derwinski, 2 Vet.App. 97,

100 (1992); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); Gilbert v. Derwinski, 1 Vet.App.

49, 56-57 (1990). 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

[appellant]'s combat service" (R. at 5); specifically, the Board relied solely on the RO's mention of

the appellant'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 appellant'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 [appellant]'s military service"

(R. at 5); such a medical nexus opinion is required in order for service connection of the appellant's

hearing loss to be established. See 38 U.S.C. § 354(b) (1976); 38 U.S.C. § 1154(b); Clyburn v. West,
11

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 appellant 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 [CUE]" (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 38 U.S.C. § 5109A(e) (directing that claim of CUE

in RO decision be submitted to Secretary "and shall be decided in the same manner as any other

claim"); 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."); Sutton v. Brown,

9 Vet.App. 553, 564-70 (1996); see also Disabled Am. Veterans v. Sec'y of Veterans Affairs,

327 F.3d 1339, 1341 (Fed. Cir. 2003) (invalidating 38 C.F.R. § 19.9(a)(2) as "contrary" to 38 U.S.C.

§ 7104(a) because "it allows the Board to consider additional evidence without having to remand the

case to the [agency of original jurisdiction] for initial consideration and without having to obtain the

appellant's waiver"). That error, unlike the reasons-or-bases defect in the Board decision, cannot be
12

considered nonprejudicial under 38 U.S.C. § 7261(b)(2), because we cannot decide that the appellant

could not possibly have prevailed on the claim had the matter been sent back to the RO for initial

CUE adjudication. Cf. Valiao v. Principi, 17 Vet.App. 229, 232 (2003) (noting that "[w]here the

facts averred by a claimant cannot conceivably result in any disposition of the appeal other than

affirmance of the Board decision, the case should not be remanded for development that could not

possibly change the outcome of the decision" and that "failure to carry out such required

development under those circumstances is nonprejudicial error under section 7261(b)(2)").

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 appellant'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 appellant'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 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. See Livesay v. Principi, 15 Vet.App. 165, 179 (2001) (en banc); Parker v. Principi,

15 Vet.App. 407, 412 (2002); see also Juarez v. Principi, 15 Vet.App. 518, 520-21 (2002). 

D. Direct-Appeal EED Claim

The Secretary seeks to stay proceedings in the instant case pending the final disposition of

McCutcheon v. Principi, No. 01-1027, and Conway v. Principi, No. 01-0107. In opposition, the

appellant argues that the Secretary "fails to explain how future decisions would affect this case" and

that this Court's decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004), provides adequate

precedential authority for application of 38 U.S.C. § 5103(a). Response at 2-3. In the interest of

judicial economy and more prompt resolution of the appellant's CUE claim, the Court will sever the

direct-appeal EED claim and stay further proceedings as to that claim pending further order of the

Court. See U.S. VET. APP. R. 5(a)(1)(C).
13

III. Conclusion

Upon consideration of the foregoing analysis, the ROA, and the parties' pleadings, and having

"take[n] due account of the rule of prejudicial error" under 38 U.S.C. § 7261(b)(2), the Court vacates

the February 2001 Board decision in part and remands the CUE 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, 5107, 5109A, 7104(a), (d)(1); 38 C.F.R. §§ 3.105, 3.400(q)(1)(ii),

(r); 38 C.F.R. §§ 4.85, 4.87a (1980); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), all

consistent with this opinion and in accordance with 38 U.S.C. § 7112 (as added by the Veterans

Benefits Act of 2003, Pub. L. No. 108-183, § 707(b), 117 Stat. 2651, 2673) (requiring Secretary to

"take such actions as may be necessary to provide for the expeditious treatment by the Board of any

claim that is remanded to the Secretary by the Court"), see Vargas-Gonzalez v. Principi, 15 Vet.App.

222, 225-30 (2001) (holding that section 302 of Veterans' Benefits Improvements Act of 1994,

Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658, predecessor of section 7112, applies to all

elements of a claim remanded by the Court or Board), and in accordance 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 (to the extent appropriate for a CUE claim) argument on the remanded

claim, 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.

The Court severs the direct-appeal EED claim and, as to that claim, grants in part the

Secretary's July 9, 2004, motion for a stay and holds that matter in abeyance pending further order

of the Court. 

It is so ordered.

VACATED AND REMANDED IN PART.