United States Court of Appeals for the Federal Circuit 

2007-7095 

WILLIAM B. WILLSEY, 

Claimant-Appellant, 

v. 

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, 

Respondent-Appellee. 

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas argued for 

claimant-appellant. 

Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC argued for 

respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and 

Richard P. Schroeder, Trial Attorney. 

Appealed from: United States Court of Appeals for Veterans Claims 

Judge William A. Moorman 
United States Court of Appeals for the Federal Circuit 

2007-7095 

WILLIAM B. WILLSEY, 

Claimant-Appellant, 

v. 

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, 

Respondent-Appellee. 

Appeal from the United States Court of Appeals for Veterans Claims in 04-0054, Judge 

William A. Moorman. 

__________________________ 

DECIDED: August 11, 2008 

__________________________ 

Before NEWMAN, Circuit Judge, BRYSON, Circuit Judge, and POGUE,∗ Judge. 

POGUE, Judge. 

This case raises the question of whether a 1983 denial of disability benefits for 

Post Traumatic Stress Disorder (“PTSD”) was free of Clear and Unmistakable Error 

(“CUE”). Although the government challenges our jurisdiction to consider the issue, we 

conclude that the question raised is a legal one subject to our review. Because there 

was no CUE in the denial, however, we affirm the decision below. 

 ∗

 Honorable Donald Pogue, Judge, United States Court of International 

Trade, sitting by designation. 
Background 

The record indicates that Claimant/Appellant William Willsey (“Willsey”) -- who 

served in the U.S. Army in Vietnam from February 1969 until February 1971-- is 

disabled by PTSD. What is at issue, however, is the effective date of that disability. 

The Department of Veterans Affairs (“VA”) Regional Office (“RO”) recognized Mr. 

Willsey’s disability in 1999, with a 30% rating, and, in 2001, raised his rating to 100%, 

effective from October 1998. Mr. Willsey, however, seeks an earlier effective date, 

based on his claim that an earlier 1983 decision denying his claim constituted CUE. 

Mr. Willsey’s VA records reveal the context of the 1983 denial. The records 

show that in July of 1982, Mr. Willsey was treated for PTSD in a VA hospital in Danville 

Illinois; he was also treated as an out-patient by a VA hospital in Peoria Illinois in August 

1982. In April 1983, Willsey filed a claim for benefits with the VA. A special psychiatric 

examination was performed at the VA medical center in Chicago the following June. In 

the report of that examination, the psychiatric examiner determined that Mr. Willsey was 

not suffering from PTSD, but noted that the examiner had not seen the records from 

Willsey’s earlier treatments for PTSD and recommended that the VA adjudicator obtain 

these earlier records. It appears that the VA’s records do not definitively resolve the 

narrow issue of whether the earlier records were obtained by the VA adjudicator. 

Willsey’s claim, however, was denied by the RO in September 1983.1

 Mr. Willsey did 

not, in 1983, appeal that initial decision. 

Instead, in 1996, Willsey applied to have his case re-opened. When the RO 

denied Willsey’s 1996 application, Willsey again did not appeal the decision. However, 

 1

 The VA made this determination on September 8, 1983.

2007-7095 2
in October of 1998, Willsey again filed an application to reopen his claim. In response, 

and as noted above, the RO granted a 30% disability, in June of 1999, but also held that 

the 1983 decision did not contain CUE. The following July, Willsey filed a notice of 

disagreement with his initial disability rating and with the denial of his request for 

revision of his prior VA decisions. The VA provided Mr. Willsey with a “statement of the 

case” but did not immediately change his rating. Willsey filed another appeal in May 

2000. His rating was subsequently raised to 70% and, in April of 2001, the RO 

increased Willsey’s disability rating to 100%, effective from October, 1998, the filing 

date of his first successful claim. Accordingly, the 2001 decision left open only the 

question of an earlier effective date. In response, Willsey requested a revision of the 

1983 decision, contending again that it was the result of error. In December, 2003 the 

Board of Veterans Affairs (“BVA” or “Board”) denied the request for revision and denied 

the earlier effective date. The Board also found no CUE in either the 1983 or the 1996 

decisions. Willsey appealed the Board’s decision to the Court of Appeals for Veterans 

Claims (“Veterans Court”), but the Veterans Court upheld the Board’s ruling. Willsey 

now appeals the Veterans Court’s ruling to this court. 

Jurisdiction 

It is our view that the Court has “rule of law” jurisdiction, as provided by 38 U.S.C. 

§ 7292(a),2

 over Willsey’s claim that the Veterans Court failed, in its review of Willsey’s 

case, to apply the test for establishing a CUE. Section 7292(a) states, in relevant part: 

After a decision of the United States Court of Appeals for Veterans Claims 

is entered in a case, any party to the case may obtain a review of the 

decision with respect to the validity of a decision of the Court on a rule of 

law or of any statute or regulation . . . or any interpretation thereof (other 

 2

 38 U.S.C. § 7292(a) (2000), amended by 38 U.S.C. § 7292(a) (Supp. II 

2002)

2007-7095 3
than a determination as to a factual matter) that was relied on by the Court 

in making the decision. 

38 U.S.C. § 7292(a) (2000) amended by 38 U.S.C. § 7292(a) (Supp. II 2002). The rule 

of law for determining if CUE is present is stated in a decision of the Veterans Court, 

Russell v. Principi, 3 Vet. App. 310 (1992). Russell established a three-prong test for 

establishing CUE, i.e., that, in order to revise a final VA decision, it must be the case 

that: 

1) 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, 

2) The error must be “undebatable” and the sort “which, had it not been 

made, would have manifestly changed the outcome at the time it was 

made,” and 

3) A determination that there was CUE must be based on the record and the 

law that existed at the time of the prior adjudication in question. 

Russell, 3 Vet. App. At 313-14. That test was subsequently adopted in substance 

in this court’s decision in Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) 

(en banc). 

Willsey contends that the Veterans Court did not apply the rule of law as set out in 

Russell for determining CUE, and that this failure to apply the rule from Russell gives 

this Court jurisdiction to hear his appeal. The VA counters that, at most, Willsey is 

alleging that the Veterans Court improperly applied the rule of law to the facts of his 

case and that, therefore, this Court lacks jurisdiction to hear Willsey’s appeal. 

In Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003) we held that the changes 

made by Congress to 38 U.S.C. § 7292(a) in 2002 had the effect of giving this Court 

jurisdiction over “a decision of the [Veterans Court] on a rule of law as a separate 

jurisdictional basis” and that this gave the court a new form of “case” jurisdiction. 

2007-7095 4
Morgan at 1361 (“[T]he amendment enacted by Congress has the effect of making the 

review of ‘a decision of the Court [of Appeals for Veterans Claims] on a rule of law’ a 

separate jurisdictional basis . . . . In short, Congress responded to this court's entreaty 

by enacting a form of ‘case’ jurisdiction.”). See also Forshey v. Principi, 382 F.3d 1335, 

1347-48 (Fed. Cir. 2002) (explaining the difference between “issue” jurisdiction and 

broader “case” jurisdiction). As explained in Morgan, a “rule of law” may include a 

court-made rule of the sort stated by the Veterans Court in Russell. Morgan, 327 F.3d 

at 1361. 

The VA contends that Russell does not establish the rule for CUE, but rather that 

the rule is established by 38 U.S.C. § 5109A(a) (“A decision by the Secretary under this 

chapter 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.”). The 

VA’s position, however, is incorrect. Although 38 U.S.C. § 5109A does provide that a 

RO decision is subject to revision based upon CUE, § 5109A does not set out the test 

for when CUE is present. That is set out by the Veterans Court in Russell and by this 

court in Cook, which is why these decisions provide the “rule of law” here. 

As noted, Willsey alleges that the Veterans Court did not, in the case below, 

apply the rule for determining CUE set out in Russell. The Veterans Court’s short, 

unpublished decision mentions Russell but makes no attempt to show how Willsey’s 

claim failed to meet its test. Rather, the Veterans Court decision simply concludes that 

there was no CUE in the RO decision. Willsey’s contention, then, that the Veterans 

Court did not apply the rule in Russell is a prima facie legal claim and provides grounds 

for this Court to take jurisdiction over this case under our “case jurisdiction” standard. 

2007-7095 5
Accordingly, this Court may decide all relevant questions of law in this appeal 

from a decision by the Veterans Court, 38 U.S.C. § 7292(d)(1), and legal determinations 

of the Veterans Court are reviewed de novo. Prenzler v. Derwinski, 928 F.2d 392, 393 

(Fed. Cir. 1991). We may “affirm or, if the decision of the Veterans’ Court is not in 

accordance with law, . . . modify or reverse the decision of the [Veterans Court] or . . . 

remand the matter, as appropriate.” 38 U.S.C. § 7292(e)(1) (2000).3

Discussion 

In light of the statutory prohibition against our review of factual determinations or 

the application of law to the facts of a particular case, 38 U.S.C. § 7292(d)(2), the issue 

before this court is whether the Veterans Court applied its decision in Russell to the 

question of whether there was CUE in the 1983 VA Regional Office decision denying 

Willsey’s application for service connection, not whether the application of that rule to 

the particular facts of this case was correct. Nonetheless, in order to assess Willsey’s 

contention that the court did not apply the Russell rule at all, it is necessary to address 

the facts of the case, and the court’s analysis of those facts, in some detail. 

Accordingly, we will consider, in turn, each prong of the Russell test. 

Willsey first contends that the VA adjudicator who ruled on his application in 1983 

did not have before him “the correct facts, as they were known at the time” because, 

Willsey claims, the VA examiner who determined that Willsey was not suffering from 

PTSD had not reviewed the medical reports from his earlier examinations. Willsey 

claims that these earlier reports found him to suffer from PTSD. Thus Willsey’s 

argument here seems to be that if the VA examiner did not review the earlier records 

 3

 Except in constitutional challenges, not an issue in this case, we may not 

review factual determinations. 38 U.S.C. § 7292(d)(2).

2007-7095 6
and amend his or her report to the adjudicator, the adjudicator’s decision would not be 

based on the “correct facts, as they were known at the time.” 

Willsey next contends that, because the examiner had not seen the earlier 

medical reports and had the opportunity to revise his diagnosis based on these reports, 

the VA adjudicator’s decision is based on an “undebatable error” of the sort “which, if it 

had not been made, would have manifestly changed the outcome at the time it was 

made.” 

Finally, Willsey contends that the record and law at the time, including the 

diagnosis of PTSD by two VA physicians, required an award of disability compensation. 

If each of these contentions were to be correct, Willsey would have met all of the prongs 

of the Russell test for CUE. 

The record before us, however, does not require reversal of the Veterans Court’s 

conclusion that there was no CUE in this case. With regard to the first prong of the 

Russell test, on the basis of the record, there is some ambiguity as to whether the 

earlier medical reports were or were not before the adjudicator. It is clear, however, that 

the adjudicator knew of the medical records and their basic content, even if he did not 

have them directly in front of him. (JA41, 85). The Board held, and the Veterans Court 

affirmed, that evidence supported the claim that the VA adjudicator did consider the 

medical records from Willsey’s earlier examinations. Additionally, the Board held that, 

at most, any error here, assuming it was error, was a breach of the “duty to assist”. (JA 

41). However, a breach of the “duty to assist” alone does not constitute CUE. Cook v. 

Principi, 318 F.3d 1334, 1341 (Fed. Cir. 2002). We cannot conclude that more is 

required by the first prong of the Russell test. 

2007-7095 7
We also cannot conclude that the decision of the RO contained an “undebatable” 

error. The RO made its decision on the basis of PTSD being “not found on exam” by 

the VA examiner. (JA 41). The RO at the least knew of the other medical records. For 

us to hold that the decision of the RO in this case was based on an “undebatable” error, 

we would have to hold that no reasonable adjudicator could weigh the evidence in the 

way that the adjudicator did. This legal determination would, on the record before us, 

be unfounded. A reasonable adjudicator could, after reviewing the reports from the VA 

examiner and Willsey’s other records, determine that greater weight should be given to 

the VA examiner’s report, particularly because that report was conducted especially for 

the purpose of determining service connection and was the last in time. Even were we 

to disagree with the adjudicator’s decision, we would not be free to re-weigh the 

evidence to conclude that this decision, even if it were at least arguably not the best 

one, was so unreasonable as to result in an undebatable error. 

Finally, the record and the law as they existed at the time of the determination do 

not compel a finding of CUE in the 1983 determination. Willsey seems to contend that, 

because he had two prior diagnoses of PTSD, the adjudicator was required to find that 

he was disabled and there was service connection in his case. But, Willsey was also 

later diagnosed as not having PTSD by a VA examiner, after the two earlier 

examinations. Willsey does not point to any rule or regulation that states that earlier 

examinations, if they are greater in number, outweigh later examinations and that the 

adjudicator therefore ought to have granted him disability. Without such a rule it again 

seems that Willsey is asking us to re-weigh the evidence, something we are not free to 

do. 

2007-7095 8
2007-7095 9

Conclusion 

The Court recognizes the very real difficulties facing Mr. Willsey in seeking both 

recognition and treatment for PTSD. We recognize as well that the VA’s case 

processing at issue here was arguably less than perfect in all of the various steps of its 

evaluation and treatment of Mr. Willsey’s condition. None of these miscues, however, 

rise to the level of a clear, unmistakable error. Therefore, the decision of the Veterans 

Court denying an earlier effective date to Willsey is affirmed. 

Affirmed