This version includes the errata dated 7Jul03-e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 

NO. 98-354

RICHARD D. SIMMONS, APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided June 4, 2003 )

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

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Thomas

A. McLaughlin, Special Assistant to the Assistant General Counsel; and Cristine D. Senseman, all

of Washington, D.C., were on the pleadings for the appellee.

Before FARLEY, STEINBERG, and GREENE, Judges.

STEINBERG, Judge: The appellant, veteran Richard D. Simmons, through counsel, seeks

review of a January 1998 Board of Veterans' Appeals (Board or BVA) decision that denied as

legally insufficient a claim of clear and unmistakable error (CUE) in an April 1977 decision by a

Department of Veterans Affairs (VA) regional office (RO) that had denied VA service connection

for arthritis and a nervous disorder. Record (R.) at 3. The relevant filings of the parties, along with

the protracted procedural history of this case, will be detailed below. For the reasons that follow,

the Court will vacate the Board decision and remand the matter.

I. Relevant Background
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The veteran served in the U.S. Navy from November 1968 to January 1970. R. at 14. His

service medical records (SMRs) reported that he had suffered from depression (R. at 23, 27) but

contained no indication of his having in-service arthritis (see R. at 17-32). A February 1972 private

hospitalization discharge report noted that the veteran had complained of "arthritis of large joints

since 12/20/71"; he was diagnosed as having "[p]olyarthritis, probably rheumatoid, seronegative".

R. at 34.

In September 1972, the veteran filed with the VARO an application for VA compensation

or pension based on arthritis. R. at 38-42. He submitted a private medical record, dated September

1972, that described treatment on "December 20, 1971, [for] painful swelling . . . near the right sacro

iliac [sic] joint." R. at 45. In November 1972, a VA examining physician diagnosed the veteran as

having "[p]olyarthritis, cause undetermined". R. at 62. The RO in December 1972 awarded the

veteran non-service-connected pension benefits for his arthritis, effective December 1971.

R. at 67-68. 

In June 1974, the veteran filed a claim for VA service connection for rheumatoid arthritis;

he asserted that his arthritis was a "direct result of his mental depression in service." R. at 80. In

July 1974, he submitted, inter alia, an April 1974 private hospitalization summary, which diagnosed

"[r]heumatoid arthritis, seronegative". R. at 86. An August 1974 VA psychiatric examination report

noted the veteran's account that he had "developed rheumatoid arthritis in December 1971" and

diagnosed "[a]nxiety reaction with depressive features, moderate only, secondary to arthritis

condition." R. at 123. The RO in September 1974 denied the veteran's "reopened claim" because

his arthritis and anxiety reaction "were not incurred in or aggravated by his period of military

[service;] nor [was] it shown that he had arthritis manifested within the first year following service."

R. at 128-29.

In November 1974, the veteran submitted a letter from Dr. Herion, a private physician,

stating:

On the basis of information contained in [m]edical [r]ecords

covering [the veteran's] illness while in the United States Navy from

August 1968 to January 1970, it is reasonable to presume that his

illness then, which appeared as mental depression, was the same as

that presenting as polyarthritis when I saw him in February 1972. . . .

The brief interval between his discharge from the military and the
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onset of his polyarthritis would, I believe, make it likely that Mr.

Simmons['] chronic disease was present even while he was in the

United States Navy.

R. at 149. In December 1974, the RO confirmed its earlier denial of service connection for arthritis;

the RO concluded: "Dr. Herion's statement provides no basis to establish that rheumatoid arthritis

developed during [the veteran's] active military service or within the [one-]year presumpti[on] period

following separation from service." R. at 156. 

In April 1977, the veteran submitted to the RO a private medical record from Dr. Ford that

contained a May 1970 diagnosis of "[a]rthritis (type undetermined) . . . [and n]ervous anxiety".

R. at 182. Later that month, the RO confirmed its prior denial of both claims. R. at 184. In May

1977, the RO notified the veteran of its decision in a letter that stated: "Dr. Ford's statement provides

no basis to establish service connection for arthritis and nervous condition." Ibid. The veteran did

not appeal to the Board any of the above RO decisions. 

In September 1994, the veteran filed a claim asserting CUE as to that April 1977 RO

decision. R. at 316. It is unclear whether the RO in 1977 reopened the veteran's claims and then

denied them on the merits or whether the RO denied the veteran's attempt to reopen as to the

previously disallowed claims. For the purposes of this decision, the Court need not decide that

question, because, pursuant to Crippen v. Brown, "it does not matter whether a particular RO

decision was or was not a merits adjudication, because the disposition of the CUE claim would

ultimately turn on the same question." Crippen, 9 Vet.App. 412, 421 (1996) (stating that in either

scenario the claimant must establish that the merits "would have 'manifestly' been changed" and also

quoting Mason (Sangernetta) v. Brown, 8 Vet.App. 44, 52 (1995)). In July 1995, the veteran

submitted a statement in which he asserted that in April 1977 he had been entitled to a presumption

of service connection under 38 C.F.R. § 3.307(a)(3). R. at 339. In February 1995, the RO denied

his CUE challenge. R. at 346-48. The veteran timely appealed to the Board. R. at 351, 359-60. In

the January 1998 BVA decision here on appeal, the Board denied the veteran's CUE claim. R. at 3.

The appellant filed his brief in this case in January 1999, and in April 1999 the Secretary filed

a motion for single-judge affirmance. In October 1999, the Court ordered the parties to file

supplemental memoranda as to the opinion of the U.S. Court of Appeals for the Federal Circuit
4

(Federal Circuit) in Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). The appellant filed his

supplemental memorandum in November 1999, and the Secretary filed his response to the appellant's

supplemental memorandum in February 2000. On August 30, 2000, a panel of the Court issued an

opinion in this case affirming the January 1998 Board decision. Simmons v. West, 14 Vet.App. 84,

91-92 (2000). The Court entered its judgment on September 21, 2000. On November 13, 2000, the

Court recalled its judgment, noting that the enactment of the Veterans Claims Assistance Act of

2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA), may affect the disposition of

many appeals under its jurisdiction. 

On December 5, 2000, the appellant, through counsel, filed a motion to vacate the Court's

August 30, 2000, opinion. On December 21, 2000, the Court ordered the parties to file supplemental

briefs addressing the effect of the changes in law enacted in the VCAA. Simmons v. Principi,

14 Vet.App. 226 (2000) (per curiam order). In January 2001, the Court also ordered that the

appellant's motion to vacate the August 30, 2000, opinion be held in abeyance pending receipt of the

supplemental briefs. Simmons v. Principi, No. 98-354, 2001 WL 122226 (Vet. App. Jan. 31, 2001)

(per curiam order). On April 5, 2001, the Secretary filed a response in which he asserted that a

remand of the matters on appeal was required pursuant to Holliday v. Principi, 14 Vet.App. 280

(2001), in order for the case to be readjudicated in light of the enactment of the VCAA. The Court

construed the Secretary's response as a motion for remand. On August 31, 2001, the Court revoked

a July 13, 2000, order that had submitted this appeal to a panel for a decision and returned the matter

to the single judge for disposition. 

On September 10, 2001, in a single-judge order, the Court vacated the Board decision and

remanded the matters for readjudication in accordance with the Secretary's unopposed, construed

motion. Simmons v. Principi, No. 98-354, 2001 WL 1167536, at *2 (Vet. App. Sept. 10, 2001). On

that same date, however, the Secretary (1) filed an opposed motion to withdraw his April 2001

response and the construed motion for remand, (2) moved to file a substitute response that he

appended to his motion, and (3) further moved for reinstatement of the Court's September 2000

judgment, based on the Court's opinion in Livesay v. Principi, 15 Vet.App. 165 (2001) (en banc)

(holding that VCAA does not apply to CUE claim as to prior BVA decision), of the judgment of

affirmance. 
5

On September 17, 2001, the appellant filed, through counsel, a motion for clarification of the

Court's August 31, 2001, order. He noted, among other things, that the Court had not ruled on his

motion to vacate the panel opinion of August 30, 2000. Motion at 2. He also inquired whether,

given the significant changes in the law represented by this Court's opinion in Livesay, supra, and

opinions of the Federal Circuit in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), and Cook

v. Principi, 258 F.3d 1311 (Fed. Cir. 2001) [hereinafter Cook I], opinion withdrawn, 275 F.3d 1365

(Fed. Cir. 2002) [hereinafter Cook II], the parties would be provided an opportunity for supplemental

briefing. Ibid. 

On September 19, 2001, the appellant filed a response in opposition to the Secretary's motion

to file a substituted response. He asserted that the holding in Livesay is not dispositive of the CUE

claim in this case because Livesay involved the assertion of CUE as to a Board decision under

38 U.S.C. § 7111, whereas this case involves CUE as to an RO decision, which is governed by

38 U.S.C. § 5109A and 38 C.F.R. § 3.105 (2002). Response (Resp.) at 1-2. Additionally, he noted

that the Court's opinion in Livesay supports a remand in this case of the issue of the nonfinality of

the 1977 RO decision based on grave procedural error. Resp. at 2. See Hayre v. West, 188 F.3d

1327, 1333 (Fed. Cir. 1999); see also Cook I, supra. On October 1, 2001, the Secretary filed a

motion for reconsideration of, or, in the alternative, for a panel decision replacing, the September

10, 2001, single-judge order.

In a June 7, 2002, per curiam order, the Court (1) sua sponte withdrew the September 10,

2001, order; (2) submitted the matter to the instant panel; (3) sua sponte withdrew the Court's

August 30, 2000, panel opinion; (4) denied the Secretary's motion to withdraw his April 5, 2001,

response and to substitute his September 30, 2001, response, but accepted the September 2001 filing

as a supplemental response; and (5) ordered the appellant to file a supplemental memorandum

addressing the Secretary's September 2001 supplemental response, as well as the effect, if any, of

the opinions in Roberson, Hayre, and Livesay, all supra, as well as Disabled American Veterans

v. Gober, 234 F.3d 682, 704 (Fed.Cir. 2001) [hereinafter DAV v. Gober], cert. denied, 532 U.S. 973

(2001), on this matter. Simmons v. Principi, 16 Vet.App. 153, 155 (2002) (per curiam order). 

The appellant filed a supplemental memorandum on June 24, 2002. Therein, he argues

(1) that under Livesay, the VCAA was inapplicable to his case (Supplemental Memorandum
6

(Mem.) at 2) but that "Livesay is applicable regarding the question of dealing with the 'grave

procedural error' allegation made by the [a]ppellant in this matter" (Mem. at 10); (2) that the Federal

Circuit's holding in DAV v. Gober that a case asserting CUE as to a priorfinal Board decision should

be dismissed rather than denied where the appellant's arguments fail to comply with specificpleading requirements for CUE claims, DAV v. Gober, 234 F.3d at 699, should be expanded to cases

alleging CUE as to a prior final RO decision (Mem. at 2); (3) that Roberson, 251 F.3d at 1384,

requires the Court to remand his case to the Board with instructions to remand the case to the RO,

in order to address whether the April 1977 RO decision complied with the duty to assist (Mem. at

5-6); and (4) that Hayre should require a remand in this case, but that "the parties and this Court may

be well served if the proceedings in this matter were stayed pending the en banc decision in Cook"

(Mem. at 10).

The Secretary responded to the appellant's supplemental memorandum on September 23,

2002. Therein, the Secretary requests a stay of proceedings pending the outcome of Cook II, supra

(Response (Resp.) at 1), and argues (1) that Livesay, 15 Vet.App. at 176, supports the Secretary's

position in this case and does not require a remand for consideration of an asserted "grievous [sic]

procedural error" (Resp. at 4); (2) that Roberson, supra, should be narrowly construed and does not

dictate a remand in this case (Resp. at 5-7); and (3) that the Court should affirm the instant Board

decision, because "[a] denial or termination under such conditions would not be a merits

determination, and would not preclude a later CUE attack on the same RO decision" (Resp. at 8).

The appellant filed on October 3, 2002, his reply to the Secretary's response. He reiterates the

arguments from his supplemental memorandum, and notes that he did not object to a stay of

proceedings pending the outcome of Cook II, supra. Reply at 1-7. On November 13, 2002, this

matter was stayed pending the outcome of Cook II, supra. 

On December 20, 2002, the Federal Circuit issued its opinion in Cook v. Principi,

318 F.3d 1334 (Fed. Cir. 2002) [hereinafter Cook III]. On January 10, 2003, the appellant filed a

motion to stay proceedings pending a decision by the U.S. Supreme Court on a petition for a writ of

certiorari, which his counsel, who was also counsel in Cook, contemplated filing in Cook III, supra.

On February 11, 2003, the Court dissolved the November 13, 2002, stay of proceedings and denied

the appellant's December 20, 2002, motion to stay proceedings any further. 
7

II. Analysis

A. VCAA

In Livesay, this Court held that the VCAA was inapplicable to a CUE claim as to a prior final

Board decision. Livesay, 15 Vet.App. at 178. Also, in Parker v. Principi, we held, in a case

involving a CUE claim as to a prior final RO decision, that the Secretary's VCAA remand motion

"has no merit following this Court's decision in Livesay." Parker, 15 Vet.App. 407, 412 (2002); see

also Juarez v. Principi, 16 Vet.App. 518, 521 (2002) (per curiam order) (citing Parker as "holding

VCAA inapplicable to claim that RO decision contained CUE"). Hence, the Court will not further

discuss this issue.

B. Grave-Procedural-Error Claim

The appellant, in his supplemental memorandum, relies on Hayre and Livesay, both supra,

to support his contention that this matter should be remanded on the basis that a "grave procedural

error" was committed during the adjudication of his claim. Mem. at 10. The Federal Circuit recently

held in Cook III that the finality of a VA decision could not be vitiated by a "grave procedural error"

on the part of VA. Cook 318 F.3d at 1341 (overruling holding of Hayre, supra, that finality of RO

decision was vitiated when VA committed "grave procedural error" by failing to obtain service

medical records requested several times by appellant). In Cook III, the asserted "grave procedural

error" was an RO's failure to provide the veteran with a proper medical examination. Ibid.

Similarly, in the instant case, the appellant has argued that "VA's failure to obtain a comprehensive

medical evaluation to determine whether the 10% threshold under 38 C.F.R. § 3.30[7](a) [(1976)]

had been met constituted a breach of its duty to assist" and that "[u]nder Hayre[, supra], the

appellant's 1977 claim to entitlement to service[-]connected arthritis should be considered

unadjudicated or nonfinal." Nov. 1999 Mem. at 2. Because a nearly identical argument was rejected

by the Federal Circuit in Cook III, the Court holds in this case that the appellant's assertion that he

was not provided a "comprehensive medical evaluation" cannot, as a matter of law, serve to vitiate

the finality of the April 1977 BVA decision. Cook III, supra.
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C. Roberson Development 

The appellant argues the following as to Roberson, supra:

The [a]ppellant would assert that the Federal Circuit's decision

in Roberson requires that this matter be remanded to the Board with

instructions to remand to the [RO] for readjudication of the

[a]ppellant's claim of VARO CUE in light of the Federal Circuit's

decision regarding the standard to be utilized in the review of claims

of CUE. . . .

In the instant matter, the Board should be instructed by the

Court to instruct the [RO] to determine whether the April 1977 [RO

d]ecision fully developed the [a]ppellant's claims for service

connection for arthritis and a nervous condition before deciding it on

the merits. Specifically, whether the [RO] had fully developed

whether there were symptoms or manifestations of a chronic

condition of rheumatoid arthritis during the presumpti[on] period

provided in 38 C.F.R. § 3.307(a)(3).

Mem. at 5-6 (emphasis in original). 

In Roberson, the Federal Circuit held that if a veteran submits evidence of a medical

disability for which he is then awarded service connection, makes a claim for the highest rating

possible, and submits evidence of unemployability, as had the veteran in that case, then VA must

consider a rating of total disability based upon individual unemployability (TDIU), even if not

specifically requested by the veteran. Roberson, 251 F.3d at 1382-85. The Federal Circuit stated:

In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), we . . . determined

that Congress has mandated that . . . VA is "to fully and

sympathetically develop the veteran's claim to its optimum before

deciding it on the merits." We see no basis for applying a different

standard to a CUE claim, and we hold that . . . []VA is thus required

to consider a CUE claim using the standard of Hodge.

Roberson, 251 F.3d at 1384. 

The appellant's Roberson arguments appear to rely on the Federal Circuit's statement that the

"standard of Hodge" should apply to CUE claims. However, in Lane v. Principi, this Court

explained the limited application of Roberson, which "involved a situation where the Federal Circuit

applied the Hodge standard in addressing the CUE determination that was before it in order to find

and require development of a non-CUE claim that was still open and pending before VA." Lane,
9

16 Vet.App. 78, 86-87 (2002). The Court went on to hold that "because . . . the appellant has not

raised any argument as to a pending non-CUE claim, any Hodge standard of development is 

inapplicable." Id. at 87. Furthermore, the Federal Circuit, in Cook III, stated that "[i]n Roberson,

a critical issue was whether, in addressing Roberson's claim that there was CUE as to the 1984 rating

decision, . . . VA and the [Court of Appeals for Veterans Claims] had erred by failing to recognize

that in his original claim, Roberson has sought [TDIU]." Cook III, 318 F.3d at 1347. 

In the instant case, the appellant has neither raised nor asserted that he had sought TDIU at

the time of his original April 1977RO decision. Furthermore, there are no pending non-CUE claims

related to that RO decision; the only arguments raised by the appellant in that respect, i.e., assertions

that his claim is nonfinal due to a "grave procedural error", were rejected in part II.B., above.

Therefore, as we held in Lane, "any Hodge standard of development" and Roberson are inapplicable

to this case. Lane, supra. 

D. CUE Claim

1. Relevant Law 

An RO decision that has become final, as had the April 1977 RO decision, 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) (1997);see also 38 U.S.C. §§ 5108, 7105(c);

cf. 38 U.S.C. § 5110(i) (2002) (providing that when previously disallowed claim is reopened and

allowed on basis of new and material evidence in form of service department records, effective date

is date such disallowed claim was filed).

VA regulatory § 3.105(a) provides:

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) (2002). The CUE claim presented here is a collateral attack on a final RO

decision. See Crippen, 9 Vet.App. at 418; see also Fugo v. Brown, 6 Vet.App. 40, 44 (1993). 
10

In Russell v. Principi, the Court defined CUE as follows:

Either the correct facts, as they were known at the time, were not

before the adjudicator or the statutory or regulatory provisions extant

at the time were incorrectly applied. . . . [CUE is] the sort of error

which, had it not been made, would have manifestly changed the

outcome . . . [, an error that is] undebatable, so that it can be said that

reasonable minds could only conclude that the original decision was

fatally flawed 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). "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." Id. 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 motion 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"). On appeal of a BVA determination that there

was no CUE as to a prior final RO decision, the Court's review is limited to determining 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); see also

Dobbin v. Principi, 15 Vet.App. 323, 326 (2001); Eddy v. Brown, 9 Vet.App. 52, 57 (1996); Damrel,

6 Vet.App. at 246; Russell, 3 Vet.App. at 315.

2. Preclusive Effect of Board Denial 

In DAV v. Gober, supra, the Federal Circuit addressed a VA regulation, 38 C.F.R.

§ 20.1404(b) (2000), that provided as follows regarding a CUE claim collaterally attacking a prior

final decision of the Board:

(b) Specific allegations required. The motion must set forth

clearly and specifically the alleged clear and unmistakable error, or

errors, of fact or law in the Board decision, the legal or factual basis

for such allegations, and why the result would have been manifestly
11

different but for the alleged error. Non-specific allegations of failure

to follow regulations or failure to give due process, or any other

general, non-specific allegations of error, are insufficient to satisfy the

requirement of the previous sentence. Motions which fail to comply

with the requirements set forth in this paragraph shall be denied. 

38 C.F.R. § 20.1404(b) (2000) (emphasis added). The Federal Circuit noted that the denial of a CUE

claim under § 20.1404(b) (2000) would be a "final decision" under this Court's opinion in Russell,

3 Vet.App. at 315. DAV v. Gober, 234 F.3d at 698. The Federal Circuit further noted that, pursuant

to 38 C.F.R. § 20.1409(c) (2000), once there is a final decision on a CUE claim on a particular issue,

the prior Board decision being collaterally attacked "'on that issue is no longer subject to revision

on the grounds of [CUE]'", and "'[s]ubsequent motions relating to that prior Board decision on that

issue shall be dismissed with prejudice.'" DAV v. Gober, 234 F.3d at 698 (quoting 38 C.F.R.

§ 20.1409(c) (2000)). The Federal Circuit then read § 20.1404(b) and § 20.1404(c) together and

concluded: 

[These paragraphs] operate together to insulate from CUE review any

issue in a prior Board decision that was the subject of a CUE motion

that was found to be defective for any of the reasons set forth in [§

20.]1404(b). Consequently, the Board decision on the issue the

claimant attempted to challenge in the defective CUE motion is not

subject to revision due to CUE. See 38 C.F.R. § 20.1409(c)[(2000)].

DAV v. Gober, 234 F.3d at 698. After noting the 38 U.S.C. § 7111(e) requirement that CUE claims

be adjudicated "on the merits", the Federal Circuit concluded:

[Regulatory § 20.]1404(b)'s requirement that a claimant

specify the basis for his CUE claim is reasonable. . . . VA is correct

that Congress directed the Board to promulgate rules to require CUE

claims to be plead with specificity in order to "make consideration of

appeals raising [CUE] less burdensome." H.R. [REP.] No. 105-52,

at 3. At the same time, however, as just explained, the effect of the

last sentence of [§ 20.]1404(b), in conjunction with [§ 20.]1409(c),

is to shield from CUE review any issue that is the subject of a CUE

motion that is "denied" because the motion does not comply with the

pleading requirements of [§ 20.]1404(b). As a result, the Board may

never decide a particular CUE claim "on the merits," as required by

38 U.S.C. § 7111(e), not because the claimant failed to establish,

substantively, his CUE claim, but, rather, because of pleading defects
12

in the motion in which the claim is first advanced. For this reason,

we believe that [§ 20.]1404(b), in the manner it operates in tandem

with [§ 20.]1409(c), is contrary to the requirement of 38 U.S.C.

§ 7111(e) that the Board decide a CUE claim on the merits. We

therefore hold, as it operates with [§ 20.]1409(c), [§ 20.]1404(b) is

invalid.

DAV v. Gober, 234 F.3d at 699. Subsequent to the Federal Circuit's opinion in DAV v. Gober, the

Secretary amended § 20.1404(b) in 66 Fed. Reg. 35,903 (July 10, 2001). The last sentence of

§ 20.1404(b) now reads: "Motions which fail to comply with the requirements set forth in this

paragraph shall be dismissed without prejudice to refiling under this subpart." 38 C.F.R.

§ 20.1404(b) (2002).

In the instant case, the appellant brought a claim of CUE as to the April 1977 RO decision.

R. at 9. The Board, in its January 1998 decision under review, discussed the Fugo specific-pleading

requirements for CUE claims and concluded that "the appellant's claim of CUE . . . must be denied

as legally insufficient." R. at 10. In Fugo, this Court determined that the appellant had "not

reasonably raised . . . CUE" because he had "fall[en] far short of alleging the kind of error that could

be considered CUE" by failing to give "some degree of specificity as to what the alleged error is and

. . . persuasive reasons . . . as to why the result would have been manifestly different but for the

alleged error." Fugo, 6 Vet.App. at 43-44.

Here, the appellant's claim of CUE as to a prior final RO decision was denied by the Board,

rather than simply not adjudicated, as in Fugo. R. at 12. Furthermore, this denial appears to have

been based on the "legal insufficien[cy]" of the appellant's claim. R. at 10. Pursuant to 38 U.S.C.

§ 5109A(e), a request for revision of an RO decision on the basis of CUE "shall be submitted to the

Secretary and shall be decided in the same manner as any other claim." 38 U.S.C. § 5109A(e)

(emphasis added). Although section 5109A does not contain a statutory provision pertaining to

review of CUE claims as to a prior final RO decision that is directly analogous to 38 U.S.C.

§ 7111(e)'s requirement that the Board decide a CUE claim "on the merits", it would be incongruous

to conclude that Congress intended to require one class of CUE claims to receive scrutiny "on the

merits", but was content to allow another class of CUE claims, such as the appellant's, to be

preclusively denied merely because it failed to meet pleading specifications. Cf. Juarez, 16 Vet.App.
13

at 520-21 (characterizing Parker, supra, as holding "VCAA inapplicable to claim that RO decision

contained CUE"). Moreover, the Court notes that claims for benefits are not subject to preclusive

denial by the Board for pleading insufficiencies. See 38 U.S.C. §§ 5102(b) (providing that, in event

of incomplete application, VAshall "notifythe claimant . . . of the information necessary to complete

the application"), 7105(d)(5) ("[t]he Board . . . may dismiss any appeal which fails to allege specific

error of fact or law in the determination being appealed" (emphasis added)); see also 38 U.S.C.

§§ 5108 (providing that previously and finally disallowed claims may be reopened upon presentation

of new and material evidence), 7266(a) (providing for filing Notice of Appeal (NOA) to this Court

to appeal "final" Board decisions). Additionally, we note that, in the VCAA, Congress eliminated

the well-grounded-claim provision from section 5107(a). See Holliday, 14 Vet.App. at 284-85.

Although this provision was technically a substantive, rather than a pleading, requirement, see

Caluza v. Brown, 7 Vet.App. 498, 506 (1995), denial for failure to submit a well-grounded claim

could be viewed as being akin to denial for a pleading insufficiency. See Nolen v. Gober,

222 F.3d 1356, 1360 (Fed. Cir. 2000) (noting that "the well[-]grounded claim requirement serves a

'gatekeeping' function in the claims process – if the veteran presents a well[-]grounded claim to the

RO, that triggers the DVA's statutory duty to assist the veteran in perfecting the claim"). Hence, it

is relevant for our purposes here to note that to the extent that this requirement could be construed

as a pleading requirement, not only did Congress in the VCAA repeal the well-grounded-claim

provision, but it also statutorily vitiated for a set period of time before the enactment of the VCAA

the res judicata effect of final denials for lack of well groundedness under pre-VCAA section

5107(a). VCAA § 7(b)(1), (2); see Holliday, 14 Vet.App. at 285. 

In reviewing BVA decisions on CUE claims, under 38 U.S.C. § 7252(a) this Court has "the

power to affirm, modify, or reverse a decision of the Board, or to remand the matter." This Court

does not, however, affirm the denial of a claim where the appellant has failed to comply with the

pleading requirements of the Court; the remedy in such cases is a dismissal. See U.S. VET. APP.

R. 31(b) ("If an appellant fails to file a brief within the time provided by this rule, . . . the Court, on

its own initiative or on motion by the Secretary, may take appropriate action, to include dismissal

of the appeal."). (Such dismissals are without prejudice, but the practical effect of such a dismissal

may preclude the refiling of an appeal. See 38 U.S.C. § 7266(a) (providing that NOA must be filed
14

within 120 days after the date on which notice of the appealed Board decision is mailed).) Therefore,

we conclude that section 5109A(e)'s statement that such cases "shall be decided in the same manner

as any other claim" is the functional equivalent of section 7111(e)'s requirement that the Board must

decide CUE claims "on the merits".

As stated above, the Federal Circuit, in DAV v. Gober, 234 F.3d at 699, held that a CUE

claim as to a prior final Board decision could not be denied for failure to meet pleading

requirements, and, indeed, the Secretary in current § 20.1404(b) has addressed this concern in the

context of CUE claims as to a prior final Board decision. In the instant case, however, it appears

that the appellant's CUE claims as to a prior final RO decision may have been denied for its failure

to meet the pleading requirements as set out in Fugo, supra. See part II.D.3., below. Although

nothing in DAV v. Gober calls into question Fugo's specific-pleading requirementsfor CUE claims,

the Federal Circuit's opinion does make clear that CUE assertions that fail to satisfy pleading

requirements must be dismissed without prejudice to refiling, and may not be denied.

DAV v. Gober, supra. Given the functional equivalence of section 5109A(e) to section 7111(e) in

terms of mandating a decision on the merits of a CUE claim, whether asserted as to RO decisions

or Board decisions, allowing a CUE claim as to a prior final RO decision to be denied rather than

dismissed without prejudice would run counter to the holding of DAV v. Gober, supra. Indeed, such

a result would produce the "absurd result" of treating disparately those claimants collaterally

attackingRO decisions and those claimants collaterally attackingBVA decisions. See United States

v. X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994); Green v. Bock Laundry Mach. Co.,

490 U.S. 504, 509 (1989); United States v. Am. Trucking Ass'ns, Inc., 310 U.S. 534, 543 (1940);

Allen (William) v. Principi, 237 F.3d 1368, 1375-76 (Fed. Cir. 2001); Timex V.I., Inc. v. United

States, 157 F.3d 879, 886 (Fed. Cir. 1998); Thayer v. Principi, 15 Vet.App. 204, 210 (2001);

Holliday v. Principi, 14 Vet.App. 280, 285 (2001) (citing precedent regarding need to avoid absurd

result when interpreting statute); Cottle v. Principi, 14 Vet.App. 329, 334 (2001); Faust v. West,

13 Vet.App. 342, 350 (2000); Trilles v. West, 13 Vet.App. 314, 324 (2000) (en banc); Davenport

v. Brown, 7 Vet.App. 476, 483-84 (1995); Gardner v. Derwinski, 1 Vet.App. 584, 587 (1991). In

order to avoid such absurd results, we thus hold that, to the extent that Fugo or any other case of this

Court can be read to hold that it is permissible to deny, rather than dismiss without prejudice, a CUE
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claim as to a prior final RO decision because an appellant failed to meet pleading specifications, such

opinions have been overruled by DAV v. Gober, supra. Following DAV v. Gober, the proper remedy

for the Board, when confronted with an inadequately plead CUE claim, whether that claim

collaterally attacks a Board decision, see 38 C.F.R. 20.1404(b) (2002), or an RO decision, see

38 C.F.R. § 3.105(a), is to dismiss that challenge without prejudice.

Accordingly, to the extent that the Board decision on appeal denied the claim preclusively

basedon pleading insufficiencies, that denial must be set aside as contrary to section 5109A(e) and

DAV v. Gober, supra. This brings us to the language of the January 1998 BVA decision on appeal.

3. Reasons or Bases

It is a well-established principle that a Board decision must be written with "reasonable

clarity". Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). As noted above, the Board in this case

denied the appellant's CUE motion on the grounds that it was "legally insufficient". R. at 10.

However, it is not clear whether the Board's denial was based on a pleading insufficiency under

Fugo, supra, or whether the Board attempted,rather inexactly, to address the merits of the appellant's

CUE motion. Indeed, the Board decision in this case is, as we described the Board decision in

Luallen v. Brown, which also addressed an allegation of CUE from a prior final RO decision, "a

model of imprecision." Luallen, 8 Vet.App. 92, 95 (1995). In Luallen, the Court determined that

the "imprecision" of the Board decision was "oflittle significance", because the Court there affirmed

the Board decision. Ibid. In light of the above discussion, however, we cannot reach the same

conclusion here. Indeed, the "imprecision" of the Board decision on appeal could lead to two

divergent results, i.e., dismissal without prejudice (if the basis of the decision was a pleading

insufficiency) or denial (if the basis of the decision was the merits of the CUE allegation), depending

upon the interpretation given to that "imprecision". 

It would be pure speculation for us to conclude that the Board did not deny the appellant's

claim on the basis of a pleading insufficiency. Rather, because the Board may well have preclusively

denied the claim on the basis of a pleading insufficiency, we must vacate the Board decision and

remand the matter for compliance with section 5109A(e) and DAV v. Gober, supra. To do otherwise

would be unjust to the appellant because it would place him in what might be construed as a res

judicata position because of an ambiguity in the Board's decision. As we explained in Gilbert:
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"These [Board] decisions must contain clear analysis and succinct but complete explanations. A

bare conclusory statement, without both supporting analysis and explanation, is neither helpful to

the veteran, nor 'clear enough to permit effective judicial review', nor in compliance with statutory

requirements." Gilbert, supra (emphasis added) (quoting Int'l Longshoremen's Assoc. v. Nat'l

Medication Bd., 870 F.2d 733, 735 (D.C. Cir. 1989));see also 38 U.S.C. § 7104(d)(1). On remand,

the Board will be mindful that if the basis for the Board's decision is a failure of the appellant to

plead CUE with the specificity required by Fugo, supra, the remedy is dismissal without prejudice,

not denial. Furthermore, if the Board adjudicates the appellant's CUE claims on the merits, it must

provide a statement of the reasons or bases for that decision that is adequate to enable the appellant

to understand the precise basis for that decision and to facilitate review in this Court should that

claim be denied. See 38 U.S.C. § 7104(d)(1); Gilbert, supra. 

III. Conclusion

On the basis of the above analysis, the Court vacates the January 1998 Board decision and

remands the matter for issuance of a readjudicated decision supported by an adequate statement of

reasons or bases, see 38 U.S.C. §§ 1110, 7104(a), (d)(1); 38 U.S.C. § 5109A(e); DAV v. Gober,

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 (VBIA), 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); see VargasGonzalez 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 appellant is entitled, until 90 days after Board

mails postremand notice to appellant, to submit additional evidence, as appropriate to claim in

question, and argument or to request hearing on appeal, at which appellant may submit new evidence

and argument), 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
17

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 NOA 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 v. West, 11 Vet.App. 468, 472 (1998).

VACATED AND REMANDED.