UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 

NO. 00-206

TIMOTHY J. JORDAN, APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued May 1, 2001 Decided September 26, 2002 )

Ronald L. Smith, of Washington, D.C., for the appellant.

Gary E. O'Connor, with whom Tim S. McClain, General Counsel; R. Randall Campbell,

Acting Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel,

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

Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges.

STEINBERG, Judge: The appellant, Timothy J. Jordan, through counsel, seeks review of

a November 1999 decision of the Board of Veterans' Appeals (Board or BVA) that determined that

there was no clear and unmistakable error (CUE) in an April 1983 Board decision that had denied

his claim for Department of Veterans Affairs (VA) service connection for a right-knee disorder.

Record (R.) at 2, 9. The appellant filed a brief, the Secretary filed a motion for summary affirmance,

and the appellant filed a brief in reply. Subsequent to oral argument, the appellant and the Secretary

each filed a supplemental brief in accordance with a Court order and the Secretary filed a letter of

supplemental authority. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).

For the reasons set forth below, the Court will affirm the Board decision on appeal.
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I. Relevant Background

 The veteran served in the U.S. Marine Corps from November 1969 to January 1970.

R. at 12. In August 1968, prior to his entry into service, he was involved in a motorcycle accident

that caused multiple contusions and lacerations to his face and left leg. R. at 80. In a March 1969

letter, Dr. Thomas F. Scott, a private physician, stated that, following treatment for these injuries,

the veteran had "later [(sometime prior to January 17, 1969,)] contacted [the physician] by telephone

[and] stat[ed] that the right knee was painful and stiff, [and that] he [had] experienced discomfort

in this extremity intermittently since the time of the accident." Ibid. Dr. Scott's letter further stated:

The [veteran] was advised to have an [x-]ray of the right knee taken[,] and this was

performed on 1-17-69. . . . Interpretation: No bony lesion demonstrated. The joint

space appears to be of normal width both medially and laterally.

In conclusion, I feel that the patient has completely recovered from the injuries

sustained in the accident of 8-27-68. The patient will have a permanent scar of the

left lower extremity and some minor scars of the face.

Ibid. 

The veteran's service entrance medical examination records reported an eight-inch scar below

the knee on the left leg (R. at 18) but noted that "no disqualifying defects or communicable diseases

were noted this date [(November 24, 1969)]". R. at 16-21. The veteran did not note any illness or

injury in the medical-history-questionnaire portion of these records (R. at 16) and recorded "No" in

response to the following questions: "Have you ever had any illness or injury other than those already

noted? . . . Have you consulted or been treated by clinics, physicians, healers, or other practitioners

within the past 5 years?" (R. at 17).

According to a December 1969 Naval Medical Board (Medical Board) report, the veteran,

in his third week of service, was referred to the Medical Board for "survey" after an orthopedic

consultation for complaints of knee pain. R. at 24. The report (1) recorded a diagnosis of

"chondromalacia right patella, EPTE [(existed prior to entrance in service)]"; (2) listed under

"origin" that this condition was "not due to [his] own misconduct" and was "not incurred in [the] line

of duty"; (3) noted that the condition "existed prior to entry [into service and was] not aggravated

by service" and "may be permanent"; and (4) included a recommendation of "discharge [because of]

erroneous enlistment". R. at 23. The following questions on the report all were answered in the
3

affirmative: "Did the member appear before the [M]edical [B]oard in person?"; "Has the member

been advised of the Medical Board findings?"; and "Has the member been offered an opportunity

to submit a rebuttal statement in writing?" Ibid. In the examination summary attached to its report,

the Medical Board stated:

This man reports that he injured his right knee in a motorcycle accident some fifteen

months ago. Since that time[,] he has had intermittent pain and has noticed

crepitation in his right knee. A history of his knee injury is not made on his

[enlistment medical examination reports].

Physical Examination at the present time reveals some vague tenderness about the

right knee. There is marked patello-femoral crepitation with flexion and extension,

both audible and palpable. The x-rays are within normal limits. The remainder of

the general physical examination is within normal limits.

R. at 24. Also attached to the Medical Board report is a "Statement of patient concerning the

findings of a Medical Board", which recorded the following statement, signed by the veteran: "I

have been informed of the findings of the [M]edical [B]oard of 31 Dec 69 in my case that my present

condition is NOT physically qualified for duty and of the recommendation of the [Medical] Board

that I be discharged from the naval service for reason of erroneous enlistment." R. at 22. This

statement also included the following sentence: "Having been informed of the findings and

recommendation of the [Medical] Board, I do (not) desire to submit a statement in rebuttal." Ibid.

(emphasis added). There is no marking on the form to indicate that the veteran selected either "do"

or "(not)". See ibid.

On August 6, 1981, the veteran filed an application for VA compensation or pension for

"chondromalacia right, EPTE service connected [sic]". R. at 36. In a November 1981 decision, a

VA regional office (RO) denied the veteran's claim for service connection and found that the

condition had "[e]xisted prior to service" and was "not aggravated beyond natural progress during

service". R. at 49. In a June 1982 Substantive Appeal to the BVA, the veteran stated, inter alia, that

he "did not even know [he could] [r]ebut[] . . . to the [M]edical [B]oard at [the] time of discharge".

R. at 62. In August 1982 sworn testimony before the BVA (R. at 65-78), he stated that (1) as a result

of the August 1968 accident, he had skinned his right knee below the kneecap, which caused a bruise

and some pain and stiffness (R. at 72, 75-76); (2) he never had experienced any crackling or pain in
4

that knee prior to service (ibid.); (3) he had injured his knee "in the course of basic training, doing

a lot of leg work, extensive running around . . . , jumping up and down[,] and going through some

vigorous type of [basic training] that they put you through" (R. at 74); and (4) he had never met

personally with the Medical Board (R. at 71). 

In April 1983, the BVA denied the veteran's claim for service connection for a right-knee

disorder. R. at 99. The Board reasoned: 

In this case, the evidence clearly demonstrates [that] the veteran experienced a

trauma before service to his right kneecap. Thus, the Board is persuaded that there

is clear and unmistakable evidence that a right knee trauma preexisted the veteran's

active service and the presumption of soundness is rebutted.

The question remaining before the Board is whether during the veteran's brief period

of active service, his preexisting right[-]knee injury increased in severity, as

distinguished from a temporary increase in symptoms. The evidence indicates that

following his motorcycle accident, the veteran experienced symptoms for several

months, finally seeking further evaluation in January 1969. [Although] the activities

of recruit training may have been painful due to an increased use of the affected joint,

the Board finds no evidence of reinjury or other clinical findings showing an increase

in the underlying pathology of his knee disorder.

R. at 98. 

In December 1998, the veteran submitted to the Board a petition for revision, on the grounds

of CUE, of the Board's April 1983 decision. R. at 123-26. The veteran's representative filed with

the Board an October 1999 motion for revision of the April 1983 Board decision (but titled this

document both a "Motion for Revision" and "Appellant's Brief"). R. at 153-56. This document

stated in pertinent part:

The [veteran] maintains [that] the 1983 Board's finding of fact that

there was no increase in the severity of the right knee disability is

unsupported by the record. He claims [that] he was found physically

fit at induction and [that] his right[-] knee [condition] was aggravated

by physical conditioning exercises during basic training. 

R. at 154. In the November 1999 BVA decision here on appeal, the Board found that there was no

CUE in the April 1983 Board decision and that, accordingly, that decision should not be revised or

reversed under 38 U.S.C. § 7111. R. at 9.
5

Following oral argument before the Court, the Court issued a May 3, 2001 order directing

the parties to file supplemental briefing addressing, inter alia, "[t]he extent (if any) to which the

Secretary has implemented through regulation the words 'and was not aggravated by such service'

in 38 U.S.C. § 1111." Jordan (Timothy) v. Principi, No. 00-206, 2001 WL 504943 (Vet. App.

May 3, 2001) (per curiam order). The appellant filed his supplemental brief in June 2001, and the

Secretary filed his in September 2001.

II. Analysis

A. CUE Law and Regulations

Once a BVA decision has become final, as had the 1983 BVA decision at issue here, it

generally may not be reversed or amended in the absence of CUE. See 38 U.S.C. § 7111;

38 C.F.R. §§ 20.1400-20.1403 (2001); cf. 38 U.S.C. § 5109A (revision of RO decision on basis of

CUE); 38 C.F.R. § 3.105(a) (2001) (same). Pursuant to section 7111, this Court has jurisdiction to

review a BVA decision that considered a claim asserting CUE in a previous BVA decision if that

claim was pending or was filed on or after November 21, 1997. See Swanson v. West,

12 Vet.App. 442, 452 (1999); Lane v. West, 11 Vet.App. 412, 413 (1998) (per curiam order); Wilson

(Richard) v. West, 11 Vet.App. 253, 254 (1998) (per curiam order). 

Section 20.1403 of title 38, Code of Federal Regulations, provides, in pertinent part:

(a) General. [CUE] is a very specific and rare kind of error. It is the kind

of error, of fact or of law, that when called to the attention of later reviewers compels

the conclusion, to which reasonable minds could not differ, that the result would have

been manifestly different but for the error. Generally, either the correct facts, as they

were known at the time, were not before the Board, or the statutory and regulatory

provisions extant at the time were incorrectly applied.

. . . . 

(c) Errors that constitute [CUE]. To warrant revision of a Board decision

on the grounds of [CUE], there must have been an error in the Board's adjudication

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

outcome when it was made. If it is not absolutely clear that a different result would

have ensued, the error complained of cannot be clear and unmistakable.
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38 C.F.R. § 20.1403(a), (c); see Russell v. Principi, 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); Damrel v. Brown, 6 Vet.App. 242, 245 (1994);

cf. Bustos, 179 F.3d at 1381 (noting that 38 U.S.C. § 5109A "merely codified 38 C.F.R. § 3.105 and

the Court of Appeals for Veterans Claims' long[-]standing interpretation of CUE"). In Russell, the

Court held: "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, 3 Vet.App. at 314; see also

38 C.F.R. § 20.1403(b). "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." Russell,

3 Vet.App. at 313; see also 38 C.F.R. § 20.1403(a); Damrel, supra. A CUE claim must also

demonstrate that if the error(s) had not been made it (they) "would have manifestly changed the

outcome". Russell, supra; see also Bustos, 179 F.3d at 1380. Moreover, the Court held in

Fugo v. Brown that "to reasonably 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 but for the alleged error." Fugo, 6 Vet.App. 40, 44 (1993); see also

Crippen v. Brown, 9 Vet.App. 412, 420 (1996). 

Russell also established that, as a threshold matter, a CUE claim cannot be raised for the first

time before this Court; instead, the claim must have been the subject of a final prior BVA

adjudication. Russell, 3 Vet.App. at 314-15. The CUE claim presented here is a collateral attack

on a final BVA decision. Cf. Crippen, 9 Vet.App. at 418 (as to collateral attack on prior RO

decision); see also Mason (Sangernetta) v. Brown, 8 Vet.App. 44, 51 (1995) (generally, effective

date earlier than that awarded in previous RO decision may be awarded only if there was CUE in that

decision or it never became final); Fugo, supra. Just as when the Court reviews a Board decision

that found no CUE in a prior final RO decision, see Eddy v. Brown, 9 Vet.App. 52, 57 (1996);

Damrel, 6 Vet.App. at 246; Russell, 3 Vet.App. at 315, when the Court reviews a Board decision that

found no CUE in a prior final Board decision, the Court's review is limited to determining whether

the Board's conclusion about the prior final decision 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
7

Vet.App. 377, 384 (1996) (holding that Board failed to provide adequate statement of reasons or

bases for rejection of claim of CUE as to RO decision); Gilbert v. Derwinski, 1 Vet.App. 49, 57

(1990); see also Eddy and Russell, both supra. 

The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that this

Court's caselaw as to review of a Board decision that there was no CUE in a prior final RO decision

is equally applicable to a collateral CUE attack on a prior final BVA decision under section 7111:

First, Rule 1403(a) is consistent with 38 U.S.C. § 7111. We have stated that, in

38 U.S.C. § 5109A, which relates to CUE at the RO and which in relevant part is

identical to § 7111, Congress expressly adopted the Court of Appeals for Veterans

Claims' definition of CUE that requires that "a claimant must show . . . an error that

would manifestly change the outcome of a prior decision." Bustos, 179 F.3d at 1381.

Rules 1403(a) and 1403(c) adhere to the "but for" test affirmed in Bustos and

established by the Court of Appeals for Veterans Claims in Russell, 3 Vet.App. at

313-14. See also Yates v. West, 213 F.3d 1372, 1374-75 (Fed. Cir. 2000).

Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-97 (Fed. Cir. 2000).

B. Court's Jurisdiction

The appellant presents the following CUE argument as to the Board's April 1983 decision

and 38 U.S.C. § 1111: 

The Board denied the appeal on the ground that there was no evidence [that] Mr.

Jordan had re-injured his knee or that there had been an increase in the underlying

knee pathology during service. The Board thereby unlawfully relieved the

Government of its burden to prove by clear and unmistakable evidence [that] the preservice injury had not been aggravated and denied service connection because

aggravation had not been affirmatively established by evidence. . . . The Board

unlawfully denied service connection even though the statutory presumption of

aggravation had not been rebutted by clear and unmistakable evidence that

aggravation of the [v]eteran's right knee injury had not occurred during service.

Depriving Mr. Jordan of the benefit of the [38 U.S.C.] § 1111 presumption of

aggravation changed the outcome of his claim.

Appellant's Brief (Br.) at 8-9. The Secretary argues in part that the Court should not consider the

appellant's CUE argument because, although the appellant raised a CUE argument before the Board,

he did not raise this specific CUE argument. Secretary's Motion (Mot.) at 1, 6-7. The appellant

responds in his reply brief that he should be allowed to raise his CUE argument before the Court

because he "has a right to invoke this Court's jurisdiction to challenge that [April 1983 BVA]
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decision." Reply Br. at 2. He cites to Maggitt v. West, 202 F.3d 1370, 1376-77 (Fed. Cir. 2000),

to support his position.

In Andre v. West, this Court stated as to its jurisdiction in the context of CUE claims and the

Federal Circuit's Maggitt opinion:

In Maggitt[, supra], the . . . Federal Circuit held that "a broad [Notice of

Disagreement] . . . may confer jurisdiction over the entire request for a benefits

entitlement." Id. at 1375. This would include particular arguments advanced in

support of a particular benefit request where the Court does possess jurisdiction over

that benefit request. Id. However, a CUE claim is "a collateral attack on a final [VA]

decision" and must be alleged with specificity. [(Citations omitted.)] . . . Because

CUE claims by their very nature must allege "some degree of specificity," Crippen[,

9 Vet.App. at 420] . . . , each specific theory underlying an attack on a final decision

would necessarily constitute a separate claim.

Andre, 14 Vet.App. 7, 10 (2000) (per curiam order), aff'd sub nom. Andre v. Principi, __F.3d __,__,

No. 01-7008, 2002 WL 1980717, at *6 (Fed. Cir. Aug. 29, 2002) ("each 'specific' assertion of CUE

constitutes a claim that must be the subject of a decision by the BVA before the [U.S. Court of

Appeals for Veterans Claims] can exercise jurisdiction over it" (quoting Russell, 3 Vet.App. at 315)).

Hence, Andre held, in effect, that a different argument for CUE is a different CUE claim, and

reached this conclusion after consideration of the following rather general argument for application

of the logic of Maggitt to a claim of CUE, to wit: Because CUE must be plead with some degree

of specificity, see, e.g., Sondel v. Brown, 6 Vet.App. 218, 220 (1994), the change of a theory

underlying a CUE claim could be interpreted in certain cases as representing not an appeal of the

CUE claim rejected by the Board, but an entirely new CUE claim over which the Board has not

rendered a decision and over which the Court thus lacks jurisdiction, see 38 U.S.C. § 7252(a) (Court

has jurisdiction over decisions of Board); andCUE claims are unlike those contemplated by Maggitt,

wherein the claim and the argument are essentially one and the same. 

In his filing, entitled "Appellant's Brief", to the Board, the appellant in the instant case argued

in part as follows: "[T]he 1983 Board's finding of fact that there was no increase in the severity of

the right[-]knee disability is unsupported by the record. He claims [that] he was found physically

fit at induction and [that] his right[-]knee [condition] was aggravated by physical conditioning

exercises during basic training." R. at 154. The Board, in its November 1999 decision, noted: "The
9

appellant essentially argues that, at the time of its April 1983 decision denying entitlement to service

connection for a right[-]knee disorder, the Board failed to properly apply the 'presumptions of

soundness and aggravation.' See 38 U.S.C.[] §§ 1111, 1137, 1153". R. at 3. In his opening brief

to this Court, the appellant states the issue on appeal as follows:

Where a veteran was entitled to the presumption of soundness provided by

38 U.S.C.[] § 1111 . . . , was the decision of the Board . . . , holding there was no

[CUE] in a 1983 Board decision, arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law where the 1983 decision unlawfully relieved

the Government of its burden to prove non-aggravation in order to rebut the

presumption and denied the claim because the veteran failed to prove aggravation?

Br. at 1. 

Put succinctly, the appellant argued before the Board that the Secretary had failed to show

by competent evidence that the appellant's knee condition had not been aggravated in service. Before

the Court, the appellant argues that the Secretary has failed to rebut by competent evidence the

purported aggravation prong of the section 1111 presumption of soundness as it relates to his knee

condition. The only notable differences between his two arguments are that (1) he did not cite

section 1111 before the Board and (2) his arguments before the Court are phrased in a slightly

different manner. Neither of these differences should be sufficient to deny him, on the basis that he

has raised a new CUE claim, jurisdiction to obtain review in this Court. This is because, under

Fugo, supra, his rephrasing of his CUE argument still meets the requirement that he allege error with

"some degree of specificity". See Bradley v. Principi, 14 Vet.App. 255, 256-57 (2001) (per curiam

order) ("each [CUE] theory alleged necessarily constitutes a separate claim"); Crippen, 9 Vet.App.

at 420; Sondel, supra (although "the appellant has raised the issue of CUE before the Board, he did

not raise the specific CUE issue presently before this Court" (emphasis added)); Fugo, 6 Vet.App.

at 44. Furthermore, although the Secretary argues before the Court that the appellant did not argue

his section 1111 theory before the Board, it is apparent that the Board thought that he had, as

evidenced by its citation to section 1111 when it summarized the appellant's arguments. R. at 3.

Accordingly, we hold that the CUE claim that the appellant presented to the Board set forth

a theory of CUE based on a failure by the Board in 1983 to apply properly the presumptions of sound

condition and aggravation as they were then set forth in the former sections 1111 and 1153 of title
10

38, U.S. Code, and that that CUE claim encompassed the arguments made in support of that theory

to the Court. His contentions before the Court merely place this argument within the rubric of the

statutory framework but do not alter the essential nature of what he argued to the Board. In that

regard, the Court stresses that its holding is based on three factors: (1) the Board's characterization

of the issue as an argument that the previous Board decision had failed to apply properly the

presumptions of "soundness and aggravation"; (2) the Court's recognition of the unique character of

CUE claims as collateral attacks on prior final VA adjudications; and (3) the Court's recognition that

the liberal construction of a VA claimant's pleadings must be tempered somewhat in CUE cases

because of the special nature of CUE claims (although, nonetheless, Fugo does not require pleading

with exactitude, only with some degree of specificity). To hold otherwise would shackle appellants,

who are generally unrepresented by counsel before the Board, with the verbatim text in Court

proceedings of whatever words they used to plead before the Board. Maggitt stands at least for the

proposition that an appellant can flesh out and rephrase his argument before this Court, and Fugo's

requirement of "some degree of specificity" 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. Cf. Andre v. Principi, __F.3d at __, 2002 WL 1980717, at *5-6 (holding that U.S. Court of

Appeals for Veterans Claims had no jurisdiction to review appellant's challenge to 1973 RO decision

on CUE groundsthat were "entirely separate and distinct claimsthat theBoard's decision [on appeal]

had not addressed"). Therefore, the Court will proceed to review the appellant's CUE-claim

arguments presented on appeal of the November 1999 BVA decision.

C. Construction of Basic Statutory Provisions in Tandem in Light of VA Regulations Setting

Forth VA's Statutory Interpretation

Before we address the appellant's specific contentions, we will set forth and examine the two

statutory provisions in question and VA's regulations interpreting them, and set forth the various

elements and burdens of proof that apply to the operation of the presumptions of sound condition

and aggravation. 

Two provisions then and now in chapter 11 of title 38, U.S. Code, are implicated here.

Section 311 of title 38 of the U.S. Code provided at the time of the 1983 BVA decision:
11

[E]very veteran [in the active military, naval, or air service during a period of war]

shall be taken to have been in sound condition when examined, accepted, and

enrolled for service, except as to defects, infirmities, or disorders noted at the time

of the examination, acceptance, and enrollment, or where clear and unmistakable

evidence demonstrates that the injury or disease existed before acceptance and

enrollment and was not aggravated by such service.

38 U.S.C. § 311 (1979) (emphasis added). Section 353, titled "Aggravation", then provided:

A preexisting injury or disease will be considered to have been aggravated by active

military, naval, or air service, where there is an increase in disability during such

service, unless there is a specific finding that the increase in disability is due to the

natural progress of the disease.

38 U.S.C. § 353 (1979) (emphasis added). The same language is currently found in sections 1111

and 1153, respectively. Although the appellant refers to sections 1111 and 1153, the Court will

generally discuss the statutory interpretation questions by reference to former sections 311 and 353,

the statutory sections extant at the time of the 1983 Board decision.

Perhaps the largest imponderable in the statutory scheme regarding the question of when

preexisting disability will be found to be aggravated by a veteran's service is an apparent disconnect

between sections 311 and 353 as to whether the Secretary has the burden of disproving aggravation

in certain cases of preexisting conditions, as the appellant contends is required by section 311, or

whether the Secretary has such a burden only when the evidence is at least in equipoise that a

preexisting condition has increased in severity in a nontemporary way during service. See generally

Beverly v. Brown, 9 Vet.App. 402, 405 (1996) ("[t]he presumption of aggravation [under section

1153] is applicable only if the preservice disability underwent an increase in severity during

service"); Falzone v. Brown, 8 Vet.App. 398, 402 (1995) (same). The two statutory provisions have

five key elements or concepts that must be understood and considered: (1) Presumption of "sound

condition" (section 311); (2) "noted at the time of the examination, acceptance, and enrollment"

(section 311); (3) presumption that a condition not so "noted" at entry "was . . . aggravated by such

service" except "where clear and unmistakable evidence demonstrates" no aggravation (section 311);

(4) presumption that a "preexisting injury or disease [was] . . . aggravated by . . . service, where there

is an increase in disability during such service" (section 353); and (5) "a specific finding that the

increase in disability is due to the natural progress of the disease" (section 353). 
12

"'The starting point in interpreting a statute is its language.'" Lee (Raymond) v. West,

13 Vet.App. 388, 394 (2000) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)).

As we recently explained:

The "plain meaning [of a statute] must be given effect unless a 'literal application of

[the] statute [or regulation] will produce a result demonstrably at odds with the

intention of its drafters.'" Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (1991),

aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115

. . . (1994); Fagan[ v. West], 13 Vet.App. [48,] 52 [(1999)]; Curtis[ v. West],

11 Vet.App. [129,] 133 [(1998)]. "If the intent of Congress is clear, that is the end

of the matter". Skinner v. Brown, 27 F.3d 1571, 1572 (Fed. Cir. 1994) (quoting

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842

. . . (1984)), aff'ing 4 Vet.App. 141 (1993) (mem.). 

Lee (Raymond), supra. Each "part or section of a statute should be construed in connection with

every other part or section so as to produce a harmonious whole." Meeks v. West, 12 Vet.App. 352,

354 (1999) (internal quotation and citation omitted); see also Cottle v. Principi, 14 Vet.App. 329,

334 (2001); Talley v. Derwinski, 2 Vet.App. 282, 286 (1992). This Court has previously held:

"[I]t [is] fundamental that a section of a statute should not be read in isolation from

the context of the whole act, and that in fulfilling our responsibility in interpreting

legislation, 'we must not be guided by a single sentence or member of a sentence, but

[should] look to the provisions of the whole law, and to its object and policy.'"

Moreau v. Brown, 9 Vet.App. 389, 396 (1996) (quoting Richards v. United States, 369 U.S. 1, 11

(1962) (quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285 (1956))), aff'd, 124 F.3d 228

(Fed. Cir. 1997). 

The precise question here is what is the relationship between the section 311 concept of

presuming aggravation "except . . . where clear and unmistakable evidence demonstrates that the

injury or disease . . . was not aggravated by . . . service" and the provisions of section 353 directing

that a "preexisting injury or disease will be considered to have been aggravated by . . . service, where

there is an increase in disability during such service, unless there is a specific finding that the

increase in disability is due to the natural progress of the disease." The appellant in effect contends

that there is no relationship – that is, that section 353 has no applicability to a case such as this

where the condition in question was not "noted at the time of the examination, acceptance, and

enrollment", and we will address this point in detail in part II.D.1., below. An examination of the
13

texts of the two statutory provisions leads us to conclude that there is no plain meaning in those

statutory provisions when read together and no "clear" intent of Congress in this respect and, hence,

that there is ambiguity in the statutory scheme. See Barnhart v. Walton, ___ U.S. ___, ___,

122 S. Ct. at 1265, 1270-71 (2002).

The relationship between the provisions of section 311 and of section 353 had not been

specifically addressed by Congress in 1983, nor has it been today. Therefore, the Secretary, who

was charged with the responsibility for applying those provisions, was responsible for interpreting

them, and he wrote regulations doing so, see 38 U.S.C. § 210(c)(1) (1979) (currently codified at

38 U.S.C. § 501(a)(1)), specifically, 38 C.F.R. §§ 3.304 (direct service connection; wartime and

peacetime) and 3.306 (aggravation of preservice disability). These provisions provide in pertinent

part:

§ 3.304 Direct service connection; wartime and peacetime.

. . . . 

(b) Presumption of soundness. The veteran will be considered to have been

in sound condition when examined, accepted and enrolled for service, except as to

defects, infirmities, or disorders noted at entrance into service, or where clear and

unmistakable (obvious or manifest) evidence demonstrates that an injury or disease

existed prior thereto. Only such conditions as are recorded in examination reports

are to be considered as noted.

38 C.F.R. § 3.304(b) (1982).

§ 3.306 Aggravation of preservice disability.

(a) General. A preexisting injury or disease will be considered to have been

aggravated by active military, naval, or air service, where there is an increase in

disability during such service, unless there is a specific finding that the increase in

disability is due to the natural progress of the disease.

(b) War service. Clear and unmistakable evidence (obvious or manifest) is

required to rebut the presumption of aggravation where the preservice disability

underwent an increase in severity during service.

38 C.F.R. § 3.306(a), (b) (1982). 
14

Under Chevron, the Court must defer to permissible agency constructions of a statute, if

"Congress has not directly addressed the precise question at issue". Chevron, 467 U.S. at 843. The

U.S. Supreme Court recently restated the proper inquiry under Chevron:

Consequently, the legal question before us is whether the [a]gency's

interpretation of the statute is lawful. This Court has previously said that, if the

statute speaks clearly "to the precise question at issue," we "must give effect to the

unambiguously expressed intent of Congress." Chevron, 467 U.S.[] at 842-843 . . . .

If, however, the statute "is silent or ambiguous with respect to the specific issue," we

must sustain the [a]gency's interpretation if it is "based on a permissible construction"

of the Act. Id.[] at 843 . . . . Hence we must decide (1) whether the statute

unambiguously forbids the [a]gency's interpretation, and, if not, (2) whether the

interpretation for other reasons, exceeds the bounds of the permissible. Ibid.; see

also United States v. Mead Corp., 533 U.S. 218, 227 . . . (2001).

Walton, supra, 122 S. Ct. at 1269. A competing principle of statutory construction is that, where a

statute is ambiguous, "interpretive doubt is to be resolved in the veteran's favor." Brown v. Gardner,

513 U.S. at 118; see also Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc) (applying Brown v.

Gardner principle to rule in appellant's favor on question of statutory interpretation). We will

address in part II.D.1., below, the application of these competing principles for interpreting

ambiguous statutory language.

The Secretary contends that, in writing regulations, he was called upon to reconcile the

provisions of sections 311 and 353 in order to resolve the ambiguity that arises when they are read

in tandem, see Cottle, Meeks, Moreau, and Talley, all supra, and that such reconciliation has been

done in § 3.304(b) and § 3.306(a). The Court agrees with the Secretary's position.

The Secretary has attempted to resolve the statutory ambiguity by implementing sections 311

and 353 in these two regulations, as to "noted" on entry into service in § 3.304 and as to aggravation

in § 3.306. In the Secretary's regulatory scheme, he has, in essence, applied section 353 as an

elucidation of the last seven words of section 311 ("and was not aggravated by such service") and

has applied the section 311 clear-and-unmistakable-evidence standard to the second part of section

353 ("unless there is a specific finding that the increase in disability is due to the natural progress

of the disease"). Notwithstanding that the Secretary's interpretation, in his regulations, of the two

sections in tandem negates a statutory construction that section 311 established an independent

statutory presumption of aggravation, the Court holds that this interpretation is not unreasonable and
15

is a permissible construction by the Secretary of the statutory provisions at issue. See Chevron,

467 U.S. at 844-45 (establishing that where statute does not directly address precise question at issue,

Court should follow agency regulation as long as "based on a permissible construction of the statute"

and not "arbitrary, capricious, or manifestly contrary to the statute"); Adams v. West, 13 Vet.App.

453, 457 (2000). Cf. Brown v. Gardner, 513 U.S. at 122 (holding that longstanding agency

interpretations that have not been subject to judicial review are not due deference simply because

of their longevity).

In Crowe v. Brown, the Court described the presumption of aggravation in the following

terms:

Even if the [appellant's condition] is properly found to have preexisted service, the

presumption of aggravation must also be addressed. When a condition is properly

found to have been preexisting (either because it was noted at entry or because

preexistance was demonstrated by clear and unmistakable evidence), the presumption

of aggravation provides:

A preexisting injury or disease will be considered to have been

aggravated by active military, naval, or air service, where there is an

increase in disability during such service, unless there is a specific

finding that the increase in disability is due to the natural progress of

the disease.

38 U.S.C. § 1153 (emphasis added); see also 38 C.F.R. § 3.306(a) (1993).

Crowe, 7 Vet.App. 238, 247 (1994).

We thus read the statutory and regulatory scheme as follows: § 3.306(a), which, as stated

above, is the relevant regulatory provision for examining the aggravation language in section 311,

provides that a preexisting condition, whether noted at entry or shown by clear and unmistakable

evidence, will be considered to be aggravated by service only "where there is [a nontemporary]

increase in disability during such service, unless there is a specific finding that the increase in

disability is due to the natural progress of the disease". 38 C.F.R. § 3.306(a). The statutory (sections

311 and 353) and regulatory (§§ 3.304(b) and 3.306) provisions operate so that the section 353 and

§ 3.306(a) presumption of aggravation is raised "[w]hen a condition is properly found to have been

preexisting", Crowe, supra – that is, either found by evidence at least in equipoise showing that the

condition was "noted" at entry or found by clear and unmistakable evidence where not so noted –
16

and when the evidence is at least in equipoise that the preexisting condition has increased in severity

of disability, that is, that "there was a [nontemporary] worsening of the veteran's underlying

[condition] during service", id. at 248. See also Routen v. West, 142 F.3d 1434, 1440 (Fed. Cir.

1998) (regarding presumption of aggravation, stating that "[t]he presumption affords a party, for

whose benefit the presumption runs, the luxury of not having to produce specific evidence to

establish the point at issue[; w]hen the predicate evidence is established that triggers the

presumption, the further evidentiary gap is filled by the presumption"). Unless the evidence shows

such a nontemporary "increase in severity of the disability, however, the presumption of aggravation

does not apply and no such specific finding [that the increase in severity was due to the natural

progress of the disease] need be made." Daniels v. Gober, 10 Vet.App. 474, 479 (1997). When, on

the other hand, the presumption of aggravation is raised by the evidence of record, "[i]t is the

Secretary's burden to rebut the presumption of in-service aggravation." Crowe, 7 Vet.App. at 247.

According to 38 C.F.R. § 3.306 (1982), in the case of wartime service, the presumption of

aggravation is rebutted by "[c]lear and unmistakable evidence" that the "worsening was due to the

natural progress of the [condition]", Crowe, 7 Vet.App. at 248. (We note that the then-extant version

of § 3.306 provided for the presumption to be rebutted by a "specific finding", based on a

preponderance of the evidence of record, in the case of all peacetime service, whereas the current

version of § 3.306 provides for the presumption to be rebutted by "[c]lear and unmistakable

evidence" in the case of peacetime service after December 31, 1946 (38 C.F.R. § 3.306(b)), and by

a "specific finding" in the case of peacetime service prior to December 7, 1941

(38 C.F.R. § 3.306(c)). However, this regulatory change is immaterial to the instant discussion,

because we are dealing only with wartime service.)

D. Principal CUE-Merits Arguments

Against this backdrop, we will now discuss the appellant's principal contentions, which he

casts in terms of the current statutory section numbers (sections 1111 and 1153). The appellant

argues before this Court that the Board in 1983 committed CUE in denying his appeal on the ground

that there was no evidence that he had reinjured his knee or that there had been an increase in the

underlying knee pathology during service. The appellant makes three principal arguments for

reversal on the basis of CUE: (1) The aggravation-of-injury rule in section 1153 applies only to
17

injuries noted upon entry into service and where the only issue is aggravation; (2) the absence of

evidence of aggravation cannot constitute "clear and unmistakable evidence" under section 1111 that

his injury was not aggravated by service; and (3) medical-judgment evidence alone can never rebut

the presumption of soundness under current section 1111. 

1. Not-Noted-on-Entry-into-Service Argument

The appellant's principal argument is that the presumption of aggravation in section 1111

(former section 311) applies whenever the defect is not noted upon entry into service and that section

1153 (former section 353) applies only when the defect is noted upon entry and the only issue is

aggravation. 

The appellant would have the Court read section 311 in isolation from section 353 in certain

cases (i.e., where the preexisting condition was not noted at entry). This reading would violate the

principle set forth in Cottle, Meeks, Moreau, and Talley, all supra. Although it is true that, under

Brown v. Gardner, "interpretive doubt is to be resolved in the veteran's favor", Brown, 513 U.S. at

118, we cannot blindly adopt a statutory interpretation simply because it would be beneficial to some

claimants if that interpretation does not present a competing reasonable interpretation. For example,

when carried to itslogical culmination, the appellant's argument would yield a finding that a certain

condition was incurred in service when there was no evidence whatsoever that any condition had

arisen in service and when the claimant had failed to report a preexisting condition. This contrasts

starkly with a case where evidence did not show service incurrence of a condition and where a

preexisting condition was noted at entry into service. In the first case, under the appellant's theory,

a claimant would likely be awarded service connection, whereas in the second case, the claimant

would not; such a scenario could perversely reward claimants who were less than fully honest in

reporting preexisting conditions at entrance examinations. Although the appellant presents, with no

citation to any authority, a possible reason for such disparate results – that if the government fails

to uncover a defect, infirmity, or disorder on an entrance examination, then a form of strict liability

should be imposed on the government – the Court nonetheless finds these results too anomalous to

constitute such a clear and unambiguous statutory interpretation as to override under Chevron the

Secretary's reasonable statutory interpretation in his regulations. The appellant's theory ignores the
18

individual responsibility of the person entering service to advise accurately as to medical problems

and history at the time of entry. Indeed, that very obligation applies to the instant case.

Hence, we hold that, under Brown v. Gardner, we must resolve interpretative doubt in favor

of claimants only where there are competing reasonable interpretations of an ambiguous statutory

provision and that, consequently, that interpretive doctrine cannot, by definition, be applied to lead

to a statutory interpretation that produces an absurd result, such as the appellant's interpretation

would lead to here, because such an interpretation would be inherently not "reasonable". See United

States v. X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994); Timex V.I., Inc. v. United States,

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

14 Vet.App. at 334; 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); Conary v. Derwinski,

3 Vet.App. 109, 111-12 (1992) (per curiam order) (Steinberg, J., concurring). Furthermore,

deference to the Secretary's interpretation ofthe statutoryprovisions, as called for in Chevron, supra,

applies here and militates strongly in favor of our upholding the Secretary's regulations because their

content is reasonable. We note, as the Federal Circuit previously has pointed out, that in certain

cases there may be tension between the principle enunciated in Brown v. Gardner, supra, and the

deference called for in Chevron, supra, i.e., where the Secretary has presented one reasonable

interpretation to resolve ambiguity in the statute (and hence Chevron, supra, should apply) and the

appellant has presented a different, but also reasonable, interpretation to resolve the ambiguity (and

hence Brown v. Gardner, supra, would seem to apply). See Nat'l Org. of Veterans' Advocates v.

Secretary of Veterans Affairs, 260 F.3d 1365, 1378-79 (Fed. Cir. 2001). However, this is not one

of those cases, because we have determined above that the appellant's interpretation of the statutory

ambiguity would lead to absurd results and thus is not a reasonable interpretation. Therefore,

because the Court is not presented with two reasonable, yet conflicting, interpretations, we need not

resolve in this case this tension between Brown v. Gardner, supra, and Chevron, supra.

2. Absence of Evidence

The appellant also argues: "The absence of evidence [of aggravation] could not satisfy the

[section 311] statutory requirement for clear and unmistakable evidence in this case." Br. at 9. The

Secretary counters that the appellant's argument is contrary to the Federal Circuit's decision in
19

Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Mot. at 7-8. The Federal Circuit held in Maxson

regarding the consideration of the absence of evidence in aggravation claims:

[E]vidence of a prolonged period without medical complaint can be considered,

along with other factors concerning the veteran's health and medical treatment during

and after military service, as evidence of whether a pre[]existing condition was

aggravated by military service. See 38 C.F.R. § 3.306(b) ("[a]ggravation may not be

conceded where the disability underwent no increase in severity on the basis of all

the evidence of record pertaining to the manifestations of the disability prior to,

during and subsequent to service[]"). The trier of fact should consider all of the

evidence including the availability of medical records, the nature and course of the

disease or disability, the amount of time that elapsed since military service, and any

other relevant facts.

Maxson, 230 F.3d at 1333. The appellant attempts to distinguish his case from Maxson by stating:

"Maxson involved 38 U.S.C.[] §§ 1153 . . . [and] 1154(b) and this appeal is based on the [section]

1111 presumption of soundness. The standard for rebuttal in Maxson was . . . 'clear and convincing

evidence to the contrary.' . . . The standard for rebuttal in this case under [section] 1111 is clear and

unmistakable evidence." Reply Br. at 6-7. Based on our holding in part II.C., above, the appellant's

argument that the presumption of aggravation arises under section 311, rather than under section 353,

is unavailing.

As to the rebuttal of the presumption of aggravation, any examination of the kind of evidence

that can be relied on by VA to rebut the section 353 presumption of aggravation must, as the

appellant suggests, take into account the very high standard of proof ("clear and unmistakable

evidence") required for such rebuttal. That standard of proof should, by itself, be enough to defeat

any theory that the analysis in Maxson would allow the Secretary to rebut the section 353

presumption of aggravation merely by the absence of evidence. Moreover, Maxson itself did not

endorse allowing the absence of evidence, standing alone, to rebut a presumption;rather, the opinion

stated that the absence of evidence "can be considered, along with other factors". Maxson, 230 F.3d

at 1333 (emphasis added). Thus, we hold that, in accordance with the general logic of Maxson,

supra, the absence of evidence may be considered as one factor in rebutting the section 353

presumption of aggravation.

Moreover, the appellant's concerns about this point appear to be misplaced in this case,

because the November 1999 Board decision discussed, as did the April 1983 Board decision being
20

challenged on CUE grounds, the positive evidence of record, including, inter alia, the reports of the

Medical Board (R. at 22-25) and Dr. Scott's letter (R. at 80). R. at 8, 98. The November 1999 Board

decision further noted that the report of the Medical Board made an affirmative finding of no

aggravation. See R. at 8. The sole possible references to the absence of any evidence occurred in

(1) the April 1983 Board decision, wherein the Board, after noting that "the activities of recruit

training may have been painful due to an increased use of the affected joint", stated: "[T]he Board

finds no evidence of reinjury or other clinical findings showing an increase in the underlying

pathology of [the veteran's] knee disorder" (R. at 98) and (2) the November 1999 Board decision,

wherein the Board stated that "private medical records dated subsequent to service show no

complaint or finding relative to the right knee" (R. at 8). However, such consideration was only one

factor in the analysis in both Board decisions. Hence, mindful of the considerable reliance on the

positive evidence of record by the Board in both 1983 and 1999, the Court holds that, to the extent

that the Board did consider the absence of evidence in its 1983 and 1999 determinations, its actions

certainly were not arbitrary or capricious. See 38 U.S.C. § 7261(a)(3)(A); Link v. West,

12 Vet.App. 39, 44 (1998); Eddy and Russell, both supra.

3. Medical-Judgment Evidence

Finally, the appellant argues with considerable force that Congress, by substituting in section

311 the phrase "or where clear and unmistakable evidence demonstrates that the injury or disease

existed prior to acceptance and enrollment and was not aggravated by such active military or naval

service" in place of "or where evidence or medical judgment is such as to warrant a finding that the

injury or disease existed prior to acceptance and enrollment", intended that "medical judgments

alone, regardless of how emphatic or numerous, are insufficient as a matter of law to rebut the

[section] 1111 presumption." Br. at 18. The appellant further argues that this Congressional intent

is demonstrated by comparing the language of the amended current section 1111 with the language

of the current section 1132 peacetime presumption of soundness, which retains the "medical

judgment" language. The appellant states as follows:

The statutory scheme enacted by Congress is intended to treat veterans of wartime

service more favorably than those who served only in peacetime. That intention is

carried out, in part, by providing veterans of wartime service with a presumption of

soundness that is more difficult for the government to rebut. The very existence of
21

separate statutes containing different language strongly indicates [that] Congress

intended a meaningful difference between the two.

Reply Br. at 5. Insofar as this point goes, the appellant's reasoning is unexceptionable. 

Prior to 1958, both the wartime and the peacetime presumptions of soundness were contained

in Veterans' Regulation No. 1(a) (Reg. 1(a)). 38 U.S.C.A. app. ch. 12 (West 1942); see generally

Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). As of 1942, the wartime presumption was

contained in part I of Reg. 1(a), which was entitled "Pensions to Veterans and the Dependents of

Veterans for Disability or Death Resulting From Active Military or Naval Service During the

Spanish-American War, Boxer Rebellion, Philippine Insurrection, and/or The World War".

Paragraph I(a) of part I listed the qualifications for a veteran to be considered to have had wartime

service, including limiting such service to the dates of the conflicts listed in the heading of this part

(and listing dates ranging from April 1917 to June 1921 for qualifying service in "The World War"

(i.e., World War I)). That presumption of soundness read:

(b) That for the purposes of paragraph I(a) hereof every person employed in

the active military or naval service for 90 days or more, shall be taken to have been

in sound condition when examined, accepted, and enrolled for service except as to

defects, infirmities, or disorders noted at time of the examination, acceptance, and

enrollment, or where evidence or medical judgment is such as to warrant a finding

that the injury or disease existed prior to acceptance and enrollment.

Reg. 1(a), Part I, para. I(b), 38 U.S.C.A. app. ch. 12 (emphasis added). The peacetime presumption

as of 1942 listed qualifications for "peacetime" service and contained a virtually identical

presumption of soundness to the wartime presumption of soundness, with the exception of a

requirement of "six months or more" of active military or naval service. Reg. I(a), Part II, para. I(b),

38 U.S.C.A. app. ch. 12.

The wartime presumption of soundness was amended byCongress in 1943, in pertinent part

as follows:

Sec. 9. 

. . . . 

(b) Paragraph I(b), part I, Veterans Regulation Numbered 1(a), as amended,

is hereby amended to read as follows:
22

"(b) For the purposes of paragraph I(a) hereof every person employed in the

active military or naval service shall be taken to have been in sound condition when

examined, accepted, and enrolled for service except as to defects, infirmities, or

disorders noted at time of the examination, acceptance, and enrollment, or where

clear and unmistakable evidence demonstrates that the injury or disease existed prior

to acceptance and enrollment and was not aggravated by such active military or

naval service."

Pub. L. No. 78-144, § 9(b) (1943) (codified as 38 U.S.C. app. ch. 12) (emphasis added). This is the

first time that "aggravation" appears in either provision (wartime or peacetime) regarding the

presumption of soundness. The legislative history accompanying this amendment described the

purpose of the bill containing this amendment, as well as this particular amendment, as follows:

"Briefly, the bill is designed to correct inequalities arising under existing law, with a view to

simplifying adjudicative practices and administrative procedure by establishing uniform provisions

wherever possible." H.R. Rep. No. 78-463 (1943), reprinted in 1943 U.S.C.C.A.N. 2159, 2160.

Both the wartime and peacetime presumptions of soundness were codified into title 38 of the

U.S. Code in 1958. See Pub. L. No. 85-857, §§ 311, 332, 72 Stat. 1105, 1119, 1122-23 (codified at

38 U.S.C. §§ 311, 332 (1958)). Both presumptions were renumbered to their current designations

in 1991 (section 1111 for the wartime presumption and section 1132 for the peacetime presumption).

See Pub. L. No. 102-83, §5(a), (c)(1), 105 Stat. 406 (1991). (At that same time, section 353 was

renumbered as section 1153. Ibid.) Apart from minor technical revisions that do not affect the

language under consideration here, the current peacetime presumption is unchanged from its form

in 1942, and the current wartime presumption is unchanged from its amended form in 1943.

Obviously, therefore, both presumptions were also unchanged from their previous (1942 and 1943,

respectively) forms in 1983, at the time of the Board decision now being collaterally attacked on the

basis of CUE. 

As stated in part II.C., above, "'[t]he starting point in interpreting a statute is its language.'"

Lee (Raymond), supra. An application of the plain meaning of section 311 would not operate in the

manner described by the appellant; nothing in the expression "where clear and unmistakable

evidence demonstrates", standing alone, would operate to exclude medical-judgment evidence as the

sole source of the "clear and unmistakable evidence". Cf. NORMAN J. SINGER, SUTHERLAND ON

STATUTORY CONSTRUCTION [hereinafter SUTHERLAND'S] § 45:09 (6th ed. 2000) ("[k]nowing the
23

purpose behind the statute could help the court decode ambiguous text, but first there must be some

ambiguity"). Therefore, in order to evaluate the appellant's argument, we assume that he is arguing

that a literal application of the statute that permitted reliance solely on medical-judgment evidence

would "produce a result demonstrably at odds with the intention of its drafters", Gardner, supra, or

an absurd result, see X-Citement Video, Inc., Timex V.I., Inc., Thayer, Cottle, Faust, Trilles,

Davenport, and Conary, all supra. 

In this context, the Court notes that the appellant, in his effort to demonstrate that "Congress

acted intentionally" in the manner he describes, refers to no legislative or regulatory history or

caselaw to support his position. In fact, the only authority that he cites for his arguments regarding

Congressional intent is a recitation of the text of the 1943 amendment to the wartime presumption

and a comparison of the plain language of the wartime and peacetime presumptions. Br. at 17-18.

Although this comparison is not without some persuasiveness, it does not, without any buttressing

authority, show an intention of the drafters that is sufficiently clear to overcome the Gardner "plain

meaning" rule noted in part II.C., above. See Lee (Raymond), supra. 

The Court agrees that, in giving meaning to the words of the section 311 presumption,

attention must be given to the fact that a different standard is contained in the parallel provision of

section 332. See SUTHERLAND'S §§ 46:05 ("A statute is passed as a whole and not in parts or

sections and is animated by one general purpose and intent. Consequently, each part or section

should be construed in connection with every other part or section so as to produce a harmonious

whole. Thus, it is not proper to confine interpretation to the one section to be construed."), 46:06

("when the legislature uses certain language in one part of the statute and different language in

another, the court assumes different meanings were intended"; "[w]hile everyword of a statute must

be presumed to have been used for a purpose, it is also the case that every word excluded from a

statute must be presumed to have been excluded for a purpose"); see also Cottle, Meeks, Moreau,

and Talley, all supra. 

The appellant argues that the mere difference in language, brought about by the 1943

amendment ofthe wartime presumption, signifies on its face an intent by Congress "to treat veterans

of wartime service more favorably than those who served only in peacetime . . . by providing

veterans of wartime service with a presumption of soundness that is more difficult for the
24

government to rebut." Reply Br. at 5. The appellant also argues that this heightened standard is

accomplished, at least "in part", by not allowing medical-judgment evidence, standing alone, to be

sufficient evidence to rebut the wartime presumption, and that this is evidenced by the excision of

the phrase "or medical judgment" from the wartime-presumption provision. See Br. at 18; see also

Reply Br. at 5. The appellant's argument fails for two reasons: First, the appellant provides no other

evidence that his interpretation does, in fact, accurately reflect the will of Congress; and, second, a

virtually identical argument regarding the construction of section 311 (there in terms of section 1111)

has already been considered and rejected by the Court in Adams, 13 Vet.App. at 456. 

Giving full effect to the 1943 change in language, it is clear that Congress created a standard

for the wartime presumption that differs from the peacetime presumption. This standard ("clear and

unmistakable evidence") is more difficult to meet than the peacetime-presumption standard of

"where evidence or medical judgment is such as to warrant a finding that the disease or injury existed

before acceptance and enrollment". There is no evidence of a clear Congressional intent to override

the plain-meaning statutory language in section 311. 

The clearly expressed purpose of the 1943 amendment to the wartime presumption was to

extend this presumption to veterans of World War II. See H.R. Rep. No. 78-463 (1943), reprinted

in 1943 U.S.C.C.A.N. 2159, 2160 ("[s]ections 9 to 13, inclusive, contain provisions applying to

World War II veterans, the presumption of soundness and rebuttable presumption of service

connection for chronic diseases"); see also Pub. L. No. 78-144 (1943) (codified as 38 U.S.C. app.

ch. 12). This was done because eligibility for the wartime presumption was strictly limited to only

those veterans of the specifically enumerated wartime service, which did not, at that time, include

service during World War II. See ibid. The legislative history does not address the addition of the

term "clear and unmistakable evidence" and the excision of the term "medical judgment". Given the

preexisting difference in treatment of the presumptions for wartime versus peacetime veterans (i.e.,

qualifying service of 90 days versus six months), it seems reasonable to conclude, as the appellant

argues, that this change was made with the purpose of providing veterans of wartime service with

a presumption that is more difficult to rebut.

It does not, however, follow that this heightened standard was to be effectuated by

diminishing the role of medical-judgment evidence in rebutting this presumption. We must
25

recognize that, because medical conditions are involved in these claims, it would be absurd to

conclude that medical judgment has no role or indeed cannot play a conclusive role in making a

determination under this provision. See generally X-Citement Video, Inc., Timex V.I., Inc., Thayer,

Cottle, Faust, Trilles, Davenport, and Conary, all supra. To the contrary, an interpretation that

medical-judgment evidence is now encompassed within the rubric of "clear and unmistakable

evidence" gives full effect to the apparent clear intent of Congress to provide for a more stringent

standard for rebutting the wartime presumption. Simply put, medical-judgment evidence, standing

alone, may in fact be used to rebut the wartime presumption, so long as that evidence rises to the

level of "clear and unmistakable evidence". Although the appellant has presented what may be one

logical view of the legislative history, the above interpretation is certainly equally logical. However,

there is no tension here between the doctrines of Chevron and Brown v. Gardner because the

operative test, as stated in part II.D.1., above, applies not when two logical views of legislative

history are in conflict, but when two reasonable interpretations of the statutory text are in conflict.

Although, as noted above, it may be a logical reading of the legislative history that the presumption

was changed in order to provide veterans of wartime service with a presumption that is more difficult

to rebut, it is not a reasonable interpretation of the statute to say that this change was effectuated

so as to preclude medical-judgment evidence rising to the level of "clear and unmistakable

evidence", standing alone, to rebut the wartime presumption. The Secretary's interpretation of the

statutory provision being a reasonable one, it is thus entitled to deference on this point. See Chevron,

supra. 

The appellant's argument also seems to contravene the Court's analysis in Adams:

The appellant argues in part that any medical opinion evidence is insufficient

as a matter of law to rebut the 38 U.S.C. § 1111 presumption of soundness . . . . The

Secretary replies that the Court's caselaw indicates that the use of medical evidence

is contemplated for purposes of rebutting the presumption of sound condition . . . .

[T]he Court agrees with the Secretary. The Court notes that nothing in the language

of section 1111 precludes utilization of such medical evidence. Indeed, the

Secretary's implementing regulation, 38 C.F.R. § 3.304(b) (1999), as the Secretary

indicates, clearly calls for the use of such medical evidence. See 38 C.F.R.

§ 3.304(b)(1) (determinations whether evidence clearly and unmistakably rebuts the

presumption of soundness should be based on medical judgment, accepted medical

principles, history with regard to clinical factors pertinent to basic character, origin,

development of injury or disease, and "thorough analysis of the evidentiary showing
26

and careful correlation of all material facts, with due regard to accepted medical

principles pertaining to the history, manifestations, clinical course, and character of

the particular injury or disease or residuals thereof"); see also Harris v. West,

203 F.3d 1347 (Fed.[]Cir. 2000) ("there is no absolute rule in the statute, the

regulation, or the case law requiring [contemporaneous clinical evidence or recorded

history] before the presumption [of sound condition] may be rebutted," and postservice physician opinion may constitute requisite clear and [unmistakable] evidence)

. . . .

Adams, 13 Vet.App. at 456. In an attempt to distinguish Adams, the appellant states: "Even though

38 C.F.R. § 3.304(b) 'clearly calls for the use of such evidence,' Adams[, supra], that administrative

regulation cannot override the intent of Congress as expressed in statutes." Reply Br. at 5. As

explained above, however, there is in fact no clear Congressional intent to ban or to limit the use of

medical-judgment evidence in rebutting this presumption. The appellant further attempts to

distinguish Adams by stating: "It is the duty of this Court to say what the law is by harmonizing the

statutory scheme, and the Court did not harmonize 38 U.S.C.[] § 1111 with 38 U.S.C.[] § 1132 in

Adams." Reply Br. at 5. The Court has in this opinion conducted such a review of the full statutory

scheme and found that it does not support the appellant's contentions as to Congress' purpose in

enacting the former statutory provisions. 

4. Conclusion as to Statutory-Interpretation Arguments

The appellant's arguments must be viewed in the context of the instant CUE challenge

rejected by the Board. The appellant would not only have to prove that at least one of his preceding

three statutory-interpretation arguments is persuasive, which he has not done, but he also would have

to show that the Board's 1999 decision, in rejecting such an argument, was "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law" (38 U.S.C. § 7261(a)(3)(A)). Because

the appellant has failed to make such a persuasive statutory-interpretation argument, it follows that

he has not demonstrated that the Board decision was arbitrary or capricious. See Russell, 3 Vet.App.

at 315. 

5. Outcome Change

Finally, the Court notes that, even if we were to accept one or all of the appellant's assertions

of an error in application of law, specifically the presumption of aggravation, CUE caselaw, as well

as the applicable VA regulation, requires a claimant to give "persuasive reasons" why the outcome
27

would have been manifestly changed had that error not been committed. Fugo, supra; see also

38 C.F.R. §§ 20.1403(a), 20.1404(b) (2001); Bustos, Crippen, Damrel, and Russell, all supra.

Because of our conclusions in the prior analysis in parts II D.1, D.2, and D.3, above, we need not

address whether the appellant has shown that the outcome would have been manifestly changed but

for one of the errors that he asserts was undebatably made. See 38 C.F.R. § 20.1403(c); Fugo and

Russell, both supra. 

E. Other Arguments

1. Miller v. West

The appellant cites Miller v. West, 11 Vet.App. 345, 348 (1998), for the proposition that "[a]

bare conclusion, even one written by a medical professional, without a factual predicate in the record

does not constitute clear and unmistakable evidence sufficient to rebut the statutory presumption of

soundness." This restatement of Miller's holding is accurate, but that proposition does not assist the

appellant on the facts of his case. He contends, incorrectly we hold, that the Medical Board report

"is completely conclusory with regard to its finding as to aggravation." Br. at 19. In Miller, the

Court was concerned with a medical report that was "not supported by any contemporaneous clinical

evidence or recorded history in th[e] record". Miller, supra. Here, in contrast, the Medical Board

report at issue did state a history of the appellant and reflected at least examination of x-rays as well

as a general physical examination. R. at 24. Furthermore, the November 1999 BVA decision found

that other evidence, including Dr. Scott's letter (R. at 80), also supported the finding of no

aggravation. R. at 8. Therefore, unlike in Miller, the Medical Board report does not stand alone as

the basis for a finding of clear and unmistakable evidence. Finally, in any event, there is not enough

evidence in support of the appellant's position so as to find that the November 1999 BVA decision

was arbitrary or capricious. See 38 U.S.C. § 7261(a)(3)(A); Russell, 3 Vet.App. at 315.

2. Reasons or Bases

In addition to examining whether a Board decision reviewing a previous BVA decision for

CUE is arbitrary or capricious, 38 U.S.C. § 7261(a)(3)(A), the Court must also examine the Board

decision to determine whether it is supported by an adequate statement of "reasons or bases",

38 U.S.C. § 7104(d)(1). See Beyrle, supra; Eddy, 9 Vet.App. at 57; Russell, 3 Vet.App. at 315;

Gilbert, supra. The Board decision on appeal stated that, although "during [his] service, the veteran
28

apparently reported some increase in symptomatology, private medical records dated subsequent to

service show no complaint or finding relative to the right knee". R. at 8. The appellant states that

these records were "not before and not relied on by the 1983 Board in reaching [its] decision".

Reply Br. at 7. The only evidence of post-service medical records in the record on appeal are several

brief entries dating from 1972 to 1979, on an unidentified physician's record. R. at 81-83. These

records apparently were received by the Board at the appellant's August 1982 hearing. R. at 80.

Therefore, the appellant's contention that these records were "not before" the Board in 1983 appears

to be incorrect; although the 1983 Board decision does not explicitly mention these records

(R. at 95-99), they appear to have been before the Board and cannot, without some further showing

by the appellant, be said not to have been "relied on" by the Board. Further, the Court has

recognized (in a non-CUE context) that, in reviewing the determination whether or not evidence

constitutes clear and unmistakable evidence, "the Court considers the history recorded at the time

of examination together with 'all other material evidence'". Crowe, 7 Vet.App. at 245-46 (quoting

38 C.F.R. § 3.304(b)(1)). The appellant has presented no argument that such postservice medical

evidence is not "material". Therefore, the consideration of such evidence in the 1999 Board decision

was not arbitrary or capricious, see 38 U.S.C. § 7261(a)(3)(A), Link, Eddy, and Russell, all supra,

and the Court finds that the Board decision on this point is supported by an adequate statement of

reasons or bases; see 38 U.S.C. § 7104(d)(1); Beyrle, Eddy, Russell, and Gilbert, all supra. Finally,

we note that the appellant argues for reversal and not a reasons-or-bases remand in this case.

III. Conclusion

On consideration of the foregoing analysis, the parties' pleadings, and a review of the record

on appeal, the Court holds that the appellant has not demonstrated that the determination in the

Board's November 1999 decision that there was no CUE in the April 22, 1983, Board decision was

arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. See

38 U.S.C. § 7261(a)(3)(A); Link, Eddy, and Russell, all supra. Nor did the Board decision violate

the "reasons or bases" requirement of 38 U.S.C. § 7104(d)(1), see Beyrle, Eddy, and Russell, all

supra; Gilbert, 1 Vet.App. at 56-57. Accordingly, the November 1999 decision of the Board is

AFFIRMED.