UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 05-3495

CARL V. LAMB, APPELLANT,

V.

JAMES B. PEAKE, M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued October 24, 2007 Decided August 7, 2008 )

Jeffrey J. Wood of York, Pennsylvania, for the appellant.

Richard A. Daley, with whom Paul J. Hutter, Acting General Counsel, R. Randall Campbell,

Assistant General Counsel, David L. Quinn, Deputy Assistant General Counsel, and Ralph G. Davis

were on the brief, all of Washington, D.C., for the appellee.

Before HAGEL, LANCE, and SCHOELEN, Judges.

LANCE, Judge, filed the opinion of the Court. SCHOELEN, Judge, filed an opinion

concurring in part and dissenting in part. 

LANCE, Judge: The appellant, veteran Carl V. Lamb, appeals through counsel an August

18, 2005, decision of the Board of Veterans' Appeals (Board) that denied an effective date earlier

than December 11, 1995, for the assignment of a compensable rating for post-traumatic stress

disorder (PTSD) and rejected the appellant's motion to revise an August 1957 regional office (RO)

decision on the basis of clear and unmistakable error (CUE). The parties each filed briefs, and the

appellant filed a reply brief. Thereafter, the Court heard oral arguments in the case. For the reasons

that follow, the Court will affirm the Board's determination that the August 1957 RO decision is

final. Further, the Court holds that the Board improperly dismissed for insufficiency of pleading two

separate theories of CUE. The Court holds the Board's failure to consider Mr. Lamb's assertion of

CUE on the basis of a post-1957 precedent in law to be nonprejudicial and will affirm the Board's
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dismissal; however, the Court will remand to the Board Mr. Lamb's assertion of CUE in the 1957

Board decision on the basis of an incorrect application of regulations in effect at the time for

adjudication consistent with this opinion.

I. FACTS

The appellant served on active duty in the U.S. Marine Corps from August 1949 to December

1951. Record (R.) at 23. He filed his original application for benefits in December 1951 and

provided the name and address of his parents in Jacksonville, Arkansas. R. at 108. In September

1952, he was granted service connection for chronic anxiety reaction, rated as 10% disabling. R. at

128. However, the appellant did not begin receiving any payments from VA pursuant to this award

because his benefits were withheld until the value of those payments equaled the severance pay

received at separation. R. at 8. In April 1954, VA recorded the appellant's notification to VA that

he had changed his address from his parents' Jacksonville, Arkansas, address to Kings Trailer Court

in Bristol, Virginia. Supplemental (Supp.) R. at 4. Mail delivered to the trailer court was received

at the trailer court office to be picked up there by residents. R. at 721. While the appellant's

permanent address was at the trailer court, the appellant often spent long periods away from home

working temporary jobs. R. at 721.

In July 1957, the RO sent a letter to the appellant at the Bristol, Virginia, address instructing

him to report for a VA examination. Supp. R. at 5. The notice letter was returned unclaimed. Supp.

R. at 6. In August 1957, the RO sent another letter to the appellant stating that because he had failed

to report for the scheduled examination, it was necessary to discontinue the payments on his award

that had been applied to the recovery of his severance pay. R. at 136. This letter was also returned

unclaimed. R. at 552. At the time his benefits were severed, the appellant had not completed the

recoupment process and had not received any payments from the Secretary. R. at 8.

In December 1995, the appellant filed a claim for service connection for chronic anxiety

reaction. R. at 139. In June 1996, the RO recognized service connection for PTSD, rated 10%

disabling, effective December 1995. R. at 206-07. In doing so, the RO determined that the

appellant's PTSD was the same condition that had been "formerly diagnosed as anxiety reaction" and

that had been suspended and rated as noncompensable since August 1957. R. at 207.
The Court notes that Mr. Lamb did not argue to the Board or to the Court that the decision to discontinue

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benefits was not a final decision based upon the VA regulation in effect at the time, which required only a suspension

of benefits until such time as a medical examination was conducted. See VA regulation 1251(a) (1957) (failure to report

for physical examination); see also VA regulation 1266 (1957) (resumption of suspended award where veteran

subsequently reports for physical examination). Because the issue is not before us in this decision, the Court takes no

position regarding whether any medical examination after the discontinuance of payments would operate to cause a

"resumption" of "suspended" payments.

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The appellant initiated and perfected an appeal of the effective date assigned to his disability

rating in the June 1996 RO decision. R. at 216, 248. He also filed a motion to revise the August 1957

RO decision on the basis of CUE, specifically alleging that he did not receive any letters relating to

the suspension of his benefits because VA had not made reasonable efforts to locate him in violation

of the due process clause of the Fifth Amendment to the U.S. Constitution and, therefore, he had good

cause for not reporting to the scheduled examination. In a 1997 hearing before the Board, the

appellant testified that he never received either the July or August 1957 letter regarding the

suspension of his benefits. R. at 388.

After an extended procedural history, the Board issued the decision on appeal, which

determined that there was no statutory or regulatory authority requiring VA "to issue a notice to a

veteran at any location other than the last known address of record." R. at 14. Accordingly, the Board

concluded that the 1957 decision was final and that the effective date assigned to the appellant's

disability rating could not be earlier than the date of his 1995 claim. The Board also found that the

appellant's due process argument was merely a vague allegation of error that did not rise to the level

of CUE and was, in essence, an allegation that VA breached its duty to assist, which can not be the

basis for revising a final rating decision based on CUE. R. at 13-15. 

II. ANALYSIS

Initially, the Court observes that it is presented with two distinct notice arguments in two

distinct postures. First, the appellant argues on direct appeal of his current effective date decision that

the August 1957 RO decision never became final because the Secretary failed to make constitutionally

adequate efforts to provide him with notice of the decision as required by the Fifth Amendment to

the U.S. Constitution. In the alternative, he argues that if the 1957 RO decision is final, then the 1

Board erred in dismissing his CUE motion, asserting that VA violated its suspension regulation by
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relying on his failure to attend a physical examination to suspend his payments because the Secretary

failed to make adequate efforts to notify him of the scheduled examination, and that he had "good

reason for not reporting for the examination." Appellant's Brief (Br.) at 8. At oral argument, the

appellant conceded that if the 1957 decision did not become final, then it cannot be the subject of a

CUE motion. Nonetheless, he argued that his notice argument might still prevail as to the

consequences of failing to report for an examination, even if it failed as to the finality of the RO

decision. Given that the viability of appellant's CUE argument depends on whether the 1957 RO

decision became final, we turn to that issue first.

A. The Finality of the 1957 RO Decision

It is now well established that if a claimant is not properly notified of an RO decision and how

it may be appealed, then the time to appeal that decision is tolled. See Ingram v. Nicholson,

21 Vet.App. 232, 241 (2007); Hauck v. Brown, 6 Vet.App. 518, 519 (1994). In such an event, the next

time the RO adjudicates entitlement to the same benefit, it is merely continuing the still-pending

claim and, therefore, a Notice of Disagreement filed after proper notice of the next RO decision puts

the matter into appellate status. See Myers v. Principi, 16 Vet.App. 228, 236 (2002). However, the

finality of a prior RO decision is a factual issue that neither the Secretary nor the Court need resolve

unless and until it becomes relevant to a proper claim or collateral attack seeking benefits. See

Ingram, 21 Vet.App. at 254; DiCarlo v. Nicholson, 20 Vet.App. 52, 55 (2006). In this case, if the

appellant is correct that the 1957 RO decision never became final because of a lack of proper notice,

that would affect the date of the claim that led to the current award and, therefore, the earliest

potential effective date for the award properly on appeal. Hence, the finality of the 1957 RO decision

is a factual issue relevant to the claim on appeal.

"[T]he Due Process Clause provides that certain substantive rights–life, liberty, and

property–cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). An essential principle of due process is that

deprivation of a protected interest must "be preceded by notice and opportunity for hearing

appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

313 (1950). However, "impracticable and extended searches are not required in the name of due

process." Id. at 317. The appellant argues that the Secretary's efforts to notify him of the 1957 RO
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decision did not meet the minimal requirements of constitutional due process because—after the

original notice was returned undelivered—the Secretary did not attempt to contact his parents, whose

address VA possessed, to determine whether they had an alternative address to reach the appellant.

Initially, the Court notes that the 1957 RO decision involved suspending a benefit that had

already been awarded. Accordingly, we are not presented with the question of whether applicants for

government benefits have due process rights in benefits that have not been awarded. Cf. Edwards

v. Peake, 22 Vet.App. 29, 33 (2008) (declining to decide the issue); Thurber v. Brown, 5 Vet.App.

119, 123 (1993) (noting that the Supreme Court has not decided the issue). The Court also notes that

the fact that the appellant never actually received any direct payments prior to his benefits being

suspended, because of the offset against his separation award, is irrelevant. R. at 8. While this may

explain whythe appellant was not alerted to the suspension by the sudden cessation of income, it does

not change the fact that he had a right to those benefits once awarded. For the reasons stated below,

however, we conclude that the Secretary did not violate the requirements of due process.

Mr. Lamb informed VA in 1954 that he had changed his address from Jacksonville, Arkansas,

to Virginia. That information was in his claims file in 1957. The appellant was aware of the need

to keep VA informed of his current address in that he notified VA of his change of address from

Arkansas to Bristol, Virginia, in 1954. At oral argument, counsel for the appellant informed the Court

upon questioning that he did not contest the fact that Mr. Lamb received the 1952 RO decision

granting him service connection and a 10% disability rating for anxiety disorder and that the Bristol,

Virginia, address to which the notices of examination and suspension of benefits were mailed was

the appellant's correct mailing address at the time they were mailed. Accordingly, there is no dispute

that the Secretary used the correct address in attempting to notify Mr. Lamb of the need to present

himself for a medical examination in 1957. Consequently, there is no dispute regarding whether the

statutory and regulatory notice requirements in effect at the time were met. The appellant's sole

contention is that, upon return of the unclaimed notice, constitutional due process required the

Secretary to pursue other means of contacting Mr. Lamb, such as by attempting to contact his parents

at an address in the claims file provided by him three years before and to determine whether they

knew of a better way to reach him.
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Initially, the Court observes that it is certainly true that when a notice letter is returned

unclaimed, the Secretary must check the claimant's file to determine if another notice letter needs to

be sent. See, e.g., Armendariz-Mata v. U.S. Dept. of Justice, Drug Enforcement Admin., 82 F.3d 679,

683 (5th Cir. 1996) ("When the government sends notice by mail, however, the proper inquiry is not

simply whether the government sent the notice, but whether it acted reasonably under all the

circumstances in relying on the mail as a means to appraise the interested party of the pending

action."). If the file reveals that the address used was incorrect or has been updated, then the

Secretary must resend the notice to the proper address. However, the onus is on the claimant to have

a reliable address for receiving notice and to keep the Secretary informed of the address. See Hyson

v. Brown, 5 Vet.App. 262, 265 (1993) (holding that "[i]n the normal course of events, it is the burden

of the veteran to keep . . . VA apprised of his whereabouts."). It is not the responsibility of the

Secretary to act as a private detective to investigate the whereabouts of a missing person.

The appellant has not presented a convincing argument as to how due process could require

the Secretary to contact a claimant's parents in search of him unless it amounts to a general duty to

search for a claimant who cannot be reached at his address of record. First, the appellant has not

established a compelling reason to limit the Secretary's alleged constitutional duty to parents of

claimants. Of course, parents of claimants might reasonably be expected to know a claimant's current

whereabouts. However, the same is true of siblings, physicians, former spouses, persons who have

submitted lay statements on behalf of the claimant, and others whose addresses might be in a claims

file. Logically, if due process requires that the Secretary make inquiries with a claimant's parents, it

also requires inquiries from any person in the claims file who might reasonably know where a

claimant is. Second, there is no dispute that if the government's notice efforts result in new

information, then the government must consider that information to determine if further efforts are

required. See Armendariz-Mata, supra. Hence, if a response to such an inquiry results in a list of yet

more individuals who might reasonably know where the claimant might be, then the Secretary would

then be obligated to contact such people. Accordingly, to accept the appellant's argument that the

Secretary was obligated to inquire with the appellant's parents about his possible whereabouts would

require us to accept the proposition that due process includes a general obligation for the Secretary

to track down a claimant who has not provided the Secretary with a reliable current address.
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Although nothing would prevent the Secretary from making these or other efforts to locate those who

failed to keep him informed of their whereabouts, such efforts are not required by the due process

clause.

In support of his argument, the appellant relies upon Small v. U.S., 136 F.3d 1334, 1338 (D.C.

Cir. 1998). However, Small is distinguishable. In Small, the government failed to follow up when

a notice of a civil asset forfeiture proceeding was returned undelivered. However, in that case the

government knew of the whereabouts of the property owner, as he was in jail on criminal charges

related to the civil proceeding. The notice letter was returned stating that the property owner had been

transferred to a different confinement facility. Under those circumstances, the U.S. Court of Appeals

for the District of Columbia Circuit held that "if the United States has some additional piece of

information that a reasonable person would use to locate the claimant, it is obliged under Mullane to

try again, unless it would be burdensome to do so." Small, 136 F.3d at 1338. Small is merely an

application of Mullane in a unique factual circumstance. The essence of Small is that when the

government knows the whereabouts of a person (indeed when the person is in government custody),

due process requires the government to actually find and deliver notice to the person. Ceasing notice

efforts based on a response that the person has been moved to another facility is plainly unreasonable.

Small recognized, however, that the government is not required to engage in a "burdensome" search

for a property owner. In fact, Small specifically stated: "Of course, if sending the letter again would

require an 'impracticable and extended search[]' for its addressee, Mullane, 339 U.S. at 317, . . . then

a reasonable person would not try again, and due process does not require another attempt." 136 F.3d

at 1337.

Turning to this case, Small is consistent with our conclusion. The claimant was an adult not

in government custody. He had provided VA with the address to which correspondence regarding

his VA benefit should be sent and VA correctly sent the notice to the address provided. It is not

reasonable to require the government in such a circumstance to search for Mr. Lamb by contacting

persons known to have had prior contact with him. Consequently, we must conclude that the

Secretary fulfilled his dutyto notifyMr. Lamb of both the examination and the suspension of benefits;

there was no violation of Mr. Lamb's Fifth Amendment due process rights; and the 1957 RO decision

is final.
This correspondence is not contained in the record on appeal. 2

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B. The Appellant's Motions to Revise the 1957 RO Decision Based on CUE

Based on our conclusion that the 1957 RO decision is final, it may be collaterally attacked

through a CUE motion. The Board found that the CUE motion lacked specificity and dismissed it.

The Court disagrees. The appellant’s allegations of CUE are at best muddled. However, the Court

believes that on close examination his April 2005 submission to VA actually alleged two separate

bases for CUE in the 1957 RO decision. In dismissing the appellant's allegations of CUE, however,

the Board did not discriminate between these allegations. The Court, however, will address both.

Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (each CUE theory is a separate matter).

In his April 2005 submission to VA, appellant's attorney (the same who represented him

before this Court) articulated the CUE arguments in their entirety as follows: 

In the alternative, the veteran has argued, also in his January 30 2004,

correspondence that the 1957 rating reduction is the product of clear and 2

unmistakable error under 38 U.S.C.§ 5109A. Such a claim presumes the finality of

the 1957 rating reduction. Under VA Regulation 1251(A), in effect in 1957,

compensation is suspended "upon the failure of a veteran without good reason to

report for physical examination." Where the RO has sent notice to a veteran and it

was returned as undeliverable and the record discloses other possible and plausible

addresses, the burden is on the Secretary to show that the veteran lacked good reason

for failing to report for the scheduled examination. Hyson v. Brown, 5 Vet. App. 262,

265 (1993). Where the Secretary cannot shoulder the burden, then an earlier effective

date is the proper remedy. Hyson at 265.

The RO has stated, in its October 2004 rating decision, that "there were no

additional possible and plausible addresses [for the veteran] at the time of this [1957]

decision." In so stating, the RO has overlooked the personnel at Kings Trailer Court,

as well as the veteran's father. Both of these resources may well have possessed

possible and plausible addresses for the veteran. Since the veteran had good reason

for failing to report for the exam under § 1251(a), i.e. his lack of notice from the VA,

the reduction of his rating in 1957 contained clear and unmistakable error. Where VA

reduces veterans rating without observance of applicable law and regulation, such a

rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). 

Appellant's Br. 734-735. 

Charitably interpreted, appellant's allegations of CUE are twofold and are stated in slightly

different terms in appellant's brief to the Court. The second paragraph of appellant's argument, as
9

amplified in his brief, is that VA suspended his disability compensation payments without making

what he characterizes as the threshold determination, i.e., whether the appellant had good cause for

his failure to report for the scheduled medical examination. Appellant's Br. at 9-10 ("The Board . . .

failed to [decide] the threshold issue under the VA regulation (whether enumerated as 1251(A) or

§ 3.251) of whether the veteran had failed 'without adequate reason to report for physical

examination'"). In the first paragraph of his argument before the Board, which may have been

intended as a refinement of the one previously discussed, the appellant alleges that VA failed to meet

its evidentiary burden to rebut the presumption that, when a veteran fails to attend a scheduled

examination and VA is aware that notice of the examination was not delivered to the veteran, "VA

bears the burden of showing that the veteran lacked adequate reason for good cause for failing to

report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 233 (1993)." Appellant's Br.

at 9 (emphasis in original). 

Because each CUE motion "is an assertion that [VA] committed a particular clear and

unmistakable error," Mr. Lamb's good cause theories are distinct and must be addressed separately.

Andre, 301 F. 3d at 1361. The Board erred in not addressing these motions on their merits. Having

found error in that the Board improperly dismissed the appeal because it found that the request to

revise the 1957 suspension decision based on CUE was not adequately articulated, the Court must

address whether this error is prejudicial. 38 U.S.C. § 7261(b) ("In making the determinations under

subsection (a), the Court shall review the record of proceedings before the Secretary and the Board

. . . and shall . . . take due account of the rule of prejudicial error."); see also Mlechick v. Mansfield,

503 F.3d 1340, 1345 (Fed. Cir. 2007) (The Court's statutory duty to take due account of the rule of

prejudicial error "permits the Veterans Court to go outside the facts as found by the Board to

determine whether an error was prejudicial").

Although the Board erred in dismissing this CUE motion, remanding it for a decision on the

merits would serve no useful purpose. See Winters v. West, 12 Vet.App. 203, 208 (1999) (en banc)

("[A] remand is not required in those situations where doing so would result in the imposition of

unnecessary burdens on the [Board] without the possibilityof anybenefits flowing to the appellant.");

see also Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991). "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." Russell
10

v. Principi, 3 Vet.App. 310, 314 (1992) (en banc). This standard requires that the argument must be

based on the law as it was understood at the time of the decision. The correct application of a statute

or regulation as it was understood at the time does not retroactively become CUE where, subsequent

to the decision challenged, there has been a change in the interpretation of the statute or regulation.

Jordan (Timothy) v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005); cf. 38 C.F.R. § 20.1403(e)

(2008) ("[CUE] does not include the otherwise correct application of a statute or regulation where,

subsequent to the Board decision challenged, there has been a change in the interpretation of the

statute or regulation."). Accordingly, a recent or novel interpretation of law cannot be used to support

a CUE motion, because any interpretation would not change what the law was understood to mean

at the time of the original decision. See Smith (Rose) v. West, 11 Vet.App. 134, 137-38 (1998)

(rejecting CUE motion as to 1969 RO decision based on its application of VA regulation invalidated

by this Court in 1993 because RO in 1969 had applied "the law in effect at that time").

The Court notes that, as a matter of law, the appellant's allegation of CUE that relies on Hyson

cannot support a valid CUE motion. Hyson, which was decided in 1993 (and citing Ashley v.

Derwinski, 2 Vet.App. 307, 311 (1992)), found that when a termination of benefits is based on failure

to report for an examination and the notice of the examination was returned to VA undelivered, the

burden is on VA to demonstrate that the notice was sent to the appellant's latest address of record and

that the appellant lacked adequate reason or good cause for failing to report for the scheduled

examination. Hyson at 5 Vet.App. at 264-265. While Hyson might support the conclusion that the

1957 decision contains error under current caselaw, because the interpretation rendered was not in

existence when the RO made its decision, its pronouncement can not establish that any error was

clear and unmistakable based on the record and law that existed at the time of the 1957 adjudication.

See Smith, 11 Vet.App. at 138-39; see also Russell, 3 Vet.App. 314. While finality is a relatively

flexible concept in veterans law, when the Court issues a ruling that disagrees with the Secretary's

interpretation of a regulation, that ruling does not retroactively invalidate every prior, final decision

based upon the prior understanding of the law. Similarly, a CUE motion is not a proper vehicle for

advancing a novel interpretation of a statute or regulation. Thus, in taking due account of the rule of

prejudicial error, the Court holds that the appellant's CUE theory based on a later interpretation of
11

law, which cannot form the basis of a valid CUE motion, must fail and that any error by the Board

in failing to adjudicate his motion on the merits is nonprejudicial.

The appellant also alleges that VA failed to properly apply regulations 1251(A) or § 3.251.

The Court notes that he does not support his argument about the meaning of "good cause" with any

authority that existed in 1957 that demonstrates that the regulation was understood as he suggests.

Nor has the appellant even cited any current authority supporting his interpretation of "good cause."

However, at this juncture, that is not the Court's concern. The issue before the Court is whether the

allegation of CUE was pled with sufficient specificity so that, assuming its truth and legal viability,

it would satisfy the three elements required to find that the challenged final decision was clearly and

unmistakably erroneous. Unlike appellant's reliance on Hyson discussed above, there is no legal

impediment to revising the 1957 RO decision if VA were to find that the RO had failed to properly

apply the applicable regulations that were in effect at that time. Such a decision, however, is not for

the Court in the first instance but for VA. See Russell, 3 Vet.App. at 320 (finding that the

determination of whether an error constitutes CUE is for the Board to determine in the first instance);

see also Mayfield v. Nicholson, 444 F.3d 1328, 1334 (Fed. Cir. 2006) ("[A] court reviewing an agency

decision generally may not sustain the agency's ruling on a ground different from that invoked by the

agency." (citing Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 87 (1943).

Although our dissenting colleague would remand both CUE motions after a finding that the

Board erred in dismissing them, the appellant has not persuaded the Court that such a remand of the

first CUE motion would be more than "an idle and useless formality." NLRB v. Wyman-Gordon Co.,

394 U.S. 759, 766 n.6 (1969). In this case, the arguments were raised below but the Board improperly

rejected them. The Court is thus obligated to "take due account of the rule of prejudicial error."

38 U.S.C. § 7261(b). See also Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004). We reject

the assertion that we are barred in our prejudicial error analysis from considering whether the

appellant has demonstrated sufficient potential merit to burden the Board with reprocessing the claim.

The U.S. Court of Appeals for the Federal Circuit has made clear that we must consider prejudice

even if there are relevant determinations that were not made by the Board in the first instance.

Mlechick, 503 F.3d at 1345; see also 38 U.S.C. § 7261(a) (the Court shall "hold unlawful and set

aside decisions . . . by the Secretary [or the Board] found to be . . . in excess of statutory jurisdiction,
12

authority, or limitations"), § 7261(b). While some cases will require a remand for such

determinations to be made in the first instance, the Court is not required to remand if it appears that

it will be a mere formality. See NLRB and Soyini, both supra. On a CUE motion, an appellant may

make new arguments on remand. See Jordan v. Principi, 17 Vet.App. 261, 271 (2003) (holding that

the CUE procedure "is broad enough to allow an appellant to rephrase and provide additional

argument and support for the same basic CUE argument presented before the Board."). However, it

makes little sense for the Court to presume that the appellant is withholding better arguments than

the facially inadequate ones presented to the Court here. Rather, to avoid piecemeal litigation,

appellants must be expected to present their best arguments to theCourt to demonstrate that a remand

would be productive.

C. Respect and Decorum

There is one final matter the Court must address. During oral argument Mr. Lamb's counsel

referred to a rating official at a VA regional office as "some schmo." Although he was immediately

corrected from the bench, his language bears further comment. This Court has now issued decisions

reviewing the conduct and decisions of VA officials totaling some 21 volumes. Those decisions are

often critical of judgments reached by VA. However, nowhere in those 21 volumes have we been

able to find an instance where the Court engaged in an ad hominem attack on an individual

adjudicator. Such conduct by counsel shows disrespect for the thousands of dedicated employees of

VA who adjudicate hundreds of thousands of cases each year and does not reflect well on counsel.

Such terminology also shows disrespect for this Court, which strives to provide a forum for decision

making that treats all litigants and counsel with respect and dignity. We emphasize to the

practitioners before this Court that such conduct is unacceptable. In the absence of evidence of

misconduct, the Court presumes that everyone involved in the process of claims

adjudication—including VA staff, claimants, claimants' representatives, and outside actors—acts with

honesty and professionalism. Unfounded accusations or innuendo of misbehavior reflect poorly on

the accuser, not the accused.
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III. CONCLUSION

On the Court's consideration of the foregoing, that part of the Board's August 18, 2005,

decision finding that the August 1957 RO decision is final is AFFIRMED. That part of the Board's

decision dismissing a claim of CUE based on Hyson is AFFIRMED; however, that part of the Board's

decision dismissing a claim of CUE based on a failure to correctly apply regulations in effect in

August 1957 on other grounds is REVERSED and the matter REMANDED for adjudication

consistent with this decision. 

SCHOELEN, Judge, concurring, in part, and dissenting, in part: I write separately only to

express my disagreement with the portion of the majority's opinion that bifurcates the appellant's CUE

motion and denies, as a matter of law, any allegation based on Hyson v. Brown, 5 Vet.App. 262

(1993). See ante at 10-11. I concur in the majority opinion to the extent that it holds that the

allegations of CUE put forth by the appellant were sufficiently specific and thus should have been

addressed on their merits by the Board below. See Andrews v. Principi, 18 Vet.App. 177, 181 (2004)

("A CUE allegation must identify the alleged error with 'some degree of specificity.'") (citing Crippen

v. Brown, 9 Vet.App. 412, 420 (1996); Fugo v. Brown, 6 Vet.App. 40, 44 (1993)); 38 C.F.R.

§ 20.1404(b) (2008). Specifically, I agree that the Board erred by neglecting to consider whether lack

of notice of a VA medical examination could constitute an "adequate reason" for a veteran's failure

to attend. Ante at 11; see 38 C.F.R. § 3.251(a) (1957). I respectfully disagree, however, with the

majority's determination that the appellant raised a separate theory of CUE based on Hyson, which

the Board may not consider in the first instance. 

It is not at all clear to me that the Court can appropriately distinguish the appellant's "good

cause" theory of CUE from any argument relying on Hyson. Rather, Hyson is simply one authority

that the appellant cites in support of his "good cause" CUE motion, which should be considered by

the Board when evaluating the merits of this motion on remand. The crux of the appellant's CUE

motion rests on VA's interpretation of 38 C.F.R. § 3.251(a) – in particular, the contention that, had

VA construed the appellant's lack of notice as an "adequate reason" for missing an examination under

38 C.F.R. § 3.251(a), his benefits would not have been terminated in 1957. Appellant's Brief (Br.)

at 9-10 ("The Board . . . failed to [address] the threshold issue under the VA regulation . . . of whether
14

the veteran had failed 'without adequate reason to report for physical examination.'" (quoting 38

C.F.R. § 3.251(a))); see also id. at 8 ("Had [VA] applied the regulation properly, it would have

realized that the appellant had good reason for not reporting for the examination scheduled . . . i.e.[,]

that he did not receive the notice to report."). Nothing in the appellant's brief or the record suggests

that the appellant intended to raise a distinct theory of CUE based on a single case. He simply cites

Hyson for the proposition that "[w]here the termination of benefits is at issue and notice of a

scheduled examination has been returned, the VA bears the burden of showing that the veteran lacked

adequate reason or good cause for failing to report for a scheduled examination." Appellant's Br. at

9 (emphasis omitted). 

The majority acknowledges that the nature of the appellant's CUE "claims" is far from clear.

See ante at 8 (noting that "[t]he appellant’s allegation of CUE is at best muddled," but "[c]haritably

interpreted, [his] allegation of CUE is twofold"). Nonetheless, it goes on to decide the merits of his

"claim." Ante at 10 (concluding that "as a matter of law, the appellant's allegation of CUE that relies

on Hyson cannot support a valid CUE motion"). The majority's finding that the appellant was not

prejudiced by the Board's failure to consider an alleged "theory" of CUE based on Hyson effectively

precludes VA from hearing any related future argument, because there is now a final denial of this

portion of his CUE motion by the Court. See Link v. West, 12 Vet.App. 39, 44 (1998) ("Under the

principle of res judicata, '[o]nce there is a final decision on the issue of [CUE] . . . that particular

claim of [CUE] may not be raised again.'" (quoting Russell v. Principi, 3 Vet.App. 310, 315 (1992)

(en banc))). 

Further, I cannot agree that this Court is in the position to find, as a matter of law, that the

appellant failed to demonstrate CUE in the 1957 RO decision. It is well established that the Court

has only limited authority to review final decisions of the Board on the basis of CUE. See Russell,

3 Vet.App. at 315. Rather, the Court's jurisdiction over the appellant's CUE motion is limited to a

determination of whether he pled CUE with sufficient specificity, a question that we consider de

novo. See Andrews, 18 Vet.App. at 182 ("There are only two circumstances, relating to a CUE

matter, where the Court applies a de novo standard of review. The first is to decide whether the

appellant, as a matter of law, has presented a valid CUE allegation." (citing Phillips v. Brown, 10

Vet.App. 25, 30 (1997))). The majorityacknowledges thislimitation on our jurisdiction, but attempts
15

to circumvent it by asserting that we are obligated to "take due account of the rule of prejudicial

error." Ante at 11 (quoting 38 U.S.C. § 7261(b); Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir.

2004)). 

Our caselaw clearly prohibits the Court from conducting a de novo review of the merits of an

appellant's CUE motion, even while assessing prejudice. See Andrews, 18 Vet.App. at 181-82

(declining to apply a de novo standard of review to the Board's denial of motions to revise on the

basis of CUE). The Court may assess only whether the Board's denial of a CUE motion was

"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Id. at 181

(citing 38 U.S.C. § 7261(a)(3)(A)); Archer v. Principi, 3 Vet.App. 433, 437 (1992);see also Russell,

3 Vet.App. at 320 (noting that the determination of whether an error constitutes CUE is a "task for

the Board in the first instance," as it is "not appropriate for [an appellate court] to make a de novo

finding [of material fact] based on the evidence" (quoting Webster v. Derwinski, 1 Vet.App. 155, 159

(1991)). The majority's analysis results in precisely that which our caselaw prohibits. It is important

to note that the Board in this case did not deny the appellant's CUE motion on the merits, but rather

dismissed it based on a pleading insufficiency. R. at 16, 19. Absent a Board decision adjudicating

the merits of his motion, we lack the authority to resolve those issues sua sponte. See Russell, 3

Vet.App. at 315 ("[T]he issue [of CUE] must have been adjudicated below. The necessary

jurisdictional 'hook' for this Court to act is a decision of the [Board] on the specific issue."); cf.

Mayfield v. Nicholson, 444 F.3d 1328, 1334 (Fed. Cir. 2006) ("[A] court reviewing an agency

decision generally may not sustain the agency's ruling on a ground different from that invoked by the

agency." (citing Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 87 (1943); Bivings v. U.S. Dep't

of Agric., 225 F.3d 1331, 1335 (Fed. Cir. 2000))). The majority states that it is simply affirming the

decision below as part of the routine application of the rule of prejudicial error. However, this Court

has never extended the application of prejudicial error this far. I believe that once the Court finds,

as it does here, that the appellant has pled CUE with sufficient specificity, it must remand the matter

for consideration by the Board in the first instance. I simply cannot accept the majority's position that

we may disregard the established confines on our jurisdiction, even in the context of assessing

prejudice.
16

In sum, I believe that the appropriate remedy in this case is to vacate the Board decision in part

and remand the appellant's entire CUE motion to the Board for adjudication on the merits. Because

the appellant has pled CUE with sufficient specificity, see Andrews, Crippen, and Fugo, all supra,

the Board must be given the opportunity to evaluate the merits of this motion, including any

arguments based on Hyson, if the appellant chooses to assert them. Further, I do not believe that it

is appropriate for the Court to assess the merits of the appellant's CUE motion in the Board's stead.

Therefore, I must respectfully dissent, in part, from the majority opinion.