United States Court of Appeals for the Federal Circuit 

04-7034 

TIMOTHY J. JORDAN, 

Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

Respondent-Appellee. 

Helen S. Irza, Morrison & Foerster LLP, San Diego, California, argued for 

claimant-appellant. On the brief was Ronald L. Smith. Of counsel was Donald E. 

Purcell, Disabled American Veterans, of Washington, DC. 

Martin F. Hockey, Jr., Senior Trial Counsel, Commercial Litigation Branch, Civil 

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

respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney 

General and David M. Cohen, Director. Of counsel on the brief were Michael J. 

Timinski, Deputy Assistant General Counsel and David J. Barrans, Staff Attorney, 

United States Department of Veterans Affairs, of Washington, DC. 

Appealed from: United States Court of Appeals for Veterans Claims 

Judge Jonathan R. Steinberg 
United States Court of Appeals for the Federal Circuit 

04-7034 

TIMOTHY J. JORDAN, 

 Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

___________________________ 

 DECIDED: March 15, 2005 

___________________________ 

Before NEWMAN, RADER, and BRYSON, Circuit Judges. 

RADER, Circuit Judge. 

 The Court of Appeals for Veterans Claims (Veterans Court) affirmed the 

Board of Veterans’ Appeals’ (Board’s) decision, which rejected Timothy Jordan’s 

claim. Mr. Jordan had asserted that a 1983 Board decision denying him service 

connection status on a knee disorder contained clear and unmistakable error 

(CUE). Jordan v. Principi, No. 00-206 (Vet. App. Sept. 24, 2003). Because the 

Veterans Court correctly determined that CUE does not arise from a change in 

the interpretation of a statute, this court affirms. 

I. 

 Mr. Jordan served in the military for one month and nineteen days, from 

November 1969 through January 1970. Fifteen months before entering service, 

Mr. Jordan suffered left and right knee injuries from a motorcycle accident. Mr. 
Jordan’s medical entrance examination report records a scar below the left knee 

but otherwise makes no mention of these injuries. Less than one month after 

service entry, Mr. Jordan complained of right knee pain, which a doctor 

diagnosed as chondromalacia patella. The military discharged Mr. Jordan in

January 1970. 

In August 1981, Mr. Jordan filed for service connection status on his right

knee injury with the VA regional office (RO). The RO denied this claim in 

November 1981. The RO concluded that Mr. Jordan’s right knee injury predated 

his service entry, and that his service had not aggravated that injury. Mr. Jordan 

then appealed the RO decision to the Board. The Board affirmed the RO’s 

decision in April 1983 finding “clear and unmistakable evidence that the veteran 

suffered a right kneecap trauma prior to entrance on active service.” Additionally,

the Board determined that “[d]uring the veteran’s period of service there was no 

increase in the severity of his preexisting right knee disorder.” 

In 1999, Mr. Jordan filed a CUE claim disputing the 1983 Board decision. 

In November 1999, the Board ruled that there was no CUE in its 1983 decision.

In so holding, the Board noted that “there was more than adequate evidence 

showing that the veteran’s right knee disorder underwent no permanent increase 

in severity during his period of active service.” Mr. Jordan next appealed the 

1999 Board ruling to the Court of Appeals for Veterans Claims. Mr. Jordan 

argued that the 1983 Board decision misinterpreted provisions in 38 U.S.C. 

§ 1111 that govern the presumption of soundness. In particular, Mr. Jordan 

contended that the 1983 Board decision did not require the Government to rebut

04-7034 2
the presumption of soundness with clear and unmistakable evidence that his

disability was not aggravated during service. While Mr. Jordan’s Veterans Court 

appeal was pending, the VA’s General Counsel issued an opinion stating that 38 

C.F.R. § 3.304, the VA regulation that implements section 1111, conflicted with 

the language of section 1111. Nevertheless, in 2003, the Veterans Court 

affirmed the 1999 Board decision, finding no CUE because 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” under 38 C.F.R. § 20.1403(e). 

II. 

This court has jurisdiction to review Veterans Court decisions on issues of

law under 38 U.S.C. § 7292. Szemraj v. Principi, 357 F.3d 1370, 1374-75 (Fed.

Cir. 2004) (citation omitted). This court reviews the asserted legal error without

deference. Id. at 1372. 

On appeal, Mr. Jordan contends that 38 C.F.R. § 3.304, the VA regulation 

implementing section 1111, is void ab initio. Mr. Jordan notes that the VA 

interpreted section 1111 contrary to its facially apparent meaning. As such, Mr. 

Jordan would have this court hold that invalidation of this regulation can 

retroactively affect final decisions, unlike a new interpretation of a regulation, 

which “can only retroactively [a]ffect decisions still open on direct review, not 

those decisions that are final.” Disabled Am. Veterans v. Gober, 234 F.3d 682,

698 (Fed. Cir. 2000). 

04-7034 3
The Government responds that this court’s decision in Gober, interpreting 

38 C.F.R. § 20.1403(e), controls this issue of retroactive application of an 

erroneous regulatory interpretation. The Government further notes that even 

later-invalidated statutes and regulations do not have retroactive effect under

U.S. Supreme Court precedent. Finally, the Government contends that even if

invalidated regulations did have retroactive effect, the VA regulation in question 

is not void ab initio because section 1111 is ambiguous when read in light of 

section 1153. 

The VA regulation in question, Section 3.304(b), provides: 

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 

considered as noted. 

(Emphasis added.) 

In contrast, section 1111 provides: 

For the purposes of section 1110 of this title, every veteran 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. 

(Emphasis added.) 

Section 3.304(b), when compared to section 1111, notably omits the 

requirement of clear and unmistakable evidence for aggravation of an injury. 

This court recently held that section 1111 requires that “the Government must 

04-7034 4
show clear and unmistakable evidence of both a preexisting condition and a lack 

of in-service aggravation to overcome the presumption of soundness for wartime 

service.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 

This appeal does not question again the correct legal standard under

section 1111. Wagner governs that issue. Rather, this case asks whether the 

change in legal standards in the interpretation of the regulations should 

retroactively affect CUE claims. Mr. Jordan seeks to avoid this court’s precedent

in Gober, arguing that the prior, now invalid, regulation was void ab initio and 

therefore did not really exist at the time of his entry. Thus, Gober would not 

apply to this case. 

Although creative, Mr. Jordan’s argument finds no legal support. Mr. 

Jordan fails to recognize that there was a change in interpretation of section 

1111 with the issuance of the opinion by the VA’s General Counsel stating that 

38 C.F.R. § 3.304 conflicted with the language of section 1111. Wagner, 370 

F.3d at 1092. Mr. Jordan believes that section 3.304 was inaccurate in setting 

forth the proper legal standard and that it was void ab initio. However, the

accuracy of the regulation as an interpretation of the governing legal standard 

does not negate the fact that the regulation did provide the first commentary on 

section 1111, and was therefore the initial interpretation of section 1111. Hence, 

Gober applies to the change in interpretation of that statute as affected by the 

issuance of the General Counsel’s opinion. 

First, 38 C.F.R. § 20.1403(e) plainly states: “Clear and unmistakable error 

does not include the otherwise correct application of a statute or regulation 

04-7034 5
where, subsequent to the Board decision challenged, there has been a change in 

the interpretation of the statute or regulation.” This court in Gober has affirmed 

that rule: “The new interpretation of a statute can only retroactively [a]ffect 

decisions still open on direct review, not those decisions that are final.” Gober, 

234 F.3d at 698. In this case, the interpretation of the regulation has indeed 

changed, but because the 1983 Board decision was final, Mr. Jordan has no 

recourse for appeal through a CUE claim; 38 C.F.R. § 20.1403(e) clearly

proscribes Mr. Jordan’s claim. 

Moreover, Mr. Jordan’s void ab initio argument does not give adequate 

weight to the finality of judgments. The Supreme Court has repeatedly denied 

attempts to reopen final decisions in the face of new judicial pronouncements or 

decisions finding statutes unconstitutional. See, e.g., Reynoldsville Casket Co. v. 

Hyde, 514 U.S. 749, 752 (1995) (new judicial interpretations of a statute apply to 

“all pending cases”); Chicot County Drainage Dist. v. Baxter State Bank, 308 

U.S. 371, 374-75 (1940) (upholding a decision that was based on a statute later

found unconstitutional). Thus, even in the extreme instance of unconstitutional 

application of a statute, the Supreme Court does not supply a retroactive remedy 

for final judgments. 

In sum, Mr. Jordan’s void ab initio argument has no legal support and

does not accord sufficient respect to a final judgment. Accordingly, this court

affirms the Veterans Court’s determination that CUE does not arise from a new 

regulatory interpretation of a statute. 

04-7034 6
COSTS 

Each party shall bear its own costs. 

AFFIRMED

04-7034 7