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«No. 98-1849 EDWARD R. ANDREWS, JR., APPELLANT, V. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' ...»

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 98-1849

EDWARD R. ANDREWS, JR., APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided June 29, 2004 )

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

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Joan E.

Moriarty, Deputy Assistant General Counsel; and Patricia Trujillo, all of Washington, D.C., were on the pleadings for the appellee.

Before IVERS, STEINBERG, and GREENE, Judges.

GREENE, Judge, filed the opinion of the Court. STEINBERG, Judge, filed an opinion concurring in part and dissenting in part.

GREENE, Judge: The veteran, Edward R. Andrews, Jr., appealed through counsel a September 8, 1998, Board of Veterans' Appeals (Board) decision that found no clear and unmistakable error (CUE) in a July 1983 VA regional office (RO) decision that granted him service connection for post-traumatic stress disorder (PTSD) at a disability rating of 10%, or in a January 1985 RO decision that increased the rating for his service-connected PTSD from 10% to 30%.

Record (R.) at 3. On January 24, 2000, the Court, by single-judge order, dismissed Mr. Andrews' appeal on the basis that he had failed to allege any errors in the Board's decision and therefore had abandoned the only issues addressed by the Board. Andrews v. West, 17 Vet.App. 337 (2000) (table).

Thereafter, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) vacated this Court's January 2000 order and directed the Court to "decide the proper standard(s) for [our] review of the Board's determination in this case respecting CUE and then to decide whether under the applicable standard of review the denial of the CUE claim was reversible error." Andrews v. Principi, 25 Fed.Appx. 997, 998 (Fed. Cir. 2001).

On February 27, 2003, the Court, in a single-judge memorandum decision, affirmed the September 8, 1998, Board decision. Andrews v. Principi, No. 98-1849, 2003 WL 1791207 (Vet.

App. Feb. 27, 2003). On March 14, 2003, the appellant, through counsel, filed a motion for reconsideration or, in the alternative, for a panel decision. On July 31, 2003, the Court, in a singlejudge order, directed the Secretary to respond to the appellant's motion; his response was received on September 4, 2003. On March 23, 2004, the single judge denied reconsideration, but the panel granted the motion for a panel decision. The February 27, 2003, single-judge memorandum decision is withdrawn, and this opinion is substituted in its place. Because the Court finds no merit in the appellant's arguments, the Board decision will be affirmed.

I. FACTS Mr. Andrews served on active duty in the U.S. Army from October 1966 to March 1969, including service in Vietnam. R. at 15. A 1974 private hospital discharge summary listed diagnoses of a suicide attempt, depressive reaction, and schizoid personality. R. at 58. A November 1976 VA medical record listed a diagnosis of depression, and stated that the veteran "[h]as spent most of [the] time depressed to some extent for [the] last 6-7 y[ea]rs." R. at 64. Other VA medical records from November 1976 also indicated treatment for depression. R. at 66-71.

A January 1981 VA medical record noted that Mr. Andrews had been admitted to a VA hospital that month, and contained diagnoses of transitory atypical psychosis, PTSD, alcohol abuse in remission, and a passive aggressive personality disorder. R. at 83. After participation in a "Vietnam Stress Group", he was discharged with a prognosis of "[f]air to good." R. at 84. He submitted a statement detailing his experiences in Vietnam (R. at 86-87) and was scheduled for a VA medical examination, for which he failed to report (R. at 89, 91). As a result, in May 1981, an RO denied his claim, which appears to have been inferred from his prior statement (R. at 86-87).

R. at 93.

In March 1983, Mr. Andrews sought to reopen his claim. R. at 96. The RO reopened his claim and in July 1983 awarded him service connection for PTSD, at a 10% rating. R. at 181. It appears that that decision was not appealed. See R. at 1-348. In September 1984, he asked for an increased rating for his service-connected PTSD. R. at 183. A December 1984 VA examination report recorded a diagnosis of PTSD, "severe and chronic." R. at 203-03. A January 1985 RO decision increased Mr. Andrews' PTSD rating from 10% to 30%. R. at 205-06. That decision apparently was also not appealed. See R. at 1-348.

In March 1995, Mr. Andrews sought a permanent total disability rating and argued that there was CUE in both the July 1983 and January 1985 RO decisions. R. at 297-98. A June 1995 RO decision awarded him a permanent and total rating for PTSD but found no CUE in either RO decision, after stating that Mr. Andrews' "assert[ion is] no more than a disagreement over matters of judgment and on this basis doesn't meet the regulatory definition of" CUE. R. at 307. In the September 1998 Board decision here on appeal, the Board concluded that, on the basis of the law and evidence in existence at the time, both the July 1983 and January 1985 RO decisions were correct, and that there was therefore no CUE in either decision. R. at 11-12. The Board further





stated:

The arguments by the veteran and his representative for CUE in the 1983 and 1985 [RO] decisions are no more than a simple disagreement with how the VA weighed and evaluated the facts, and as such, this does not rise to the level of CUE. The Court has stated that it must always be remembered that CUE is a very specific and rare kind of "error." It is the kind of error, of fact or 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. Fugo v. Brown, 6 Vet.App. 40, 43 (1993). The veteran has not pointed to such error in the subject [RO] decisions, and the Board is unable to discern such error.

R. at 12. Mr. Andrews then appealed to this Court.

In January 2000, this Court, in a single-judge order, dismissed the appeal from the Board's

September 1998 decision; the Court stated:

This Court has consistently held that any claims or issues not pursued on appeal are considered abandoned. See Johnston v. Brown, 10 Vet.App. 80, 86 (1997); Phillips v. Brown, 10 Vet.App. 25, 27 (1997); Watai v. Brown, 9 Vet.App.

441, 443 (1996); Bucklinger v. Brown, 5 Vet.App. 435 (1993). Here, the appellant has failed to allege any errors in the Board's decision and thus abandons the only issues addressed by the Board. On the other hand, Mr. Andrews' counsel, citing Luallen v. Brown, 8 Vet.App. 92 (1995)[,] as legal authority, contends that questions of CUE are questions of law and thus subject to this Court's de novo review.... But the Court cannot discern in Luallen any valid basis for that position. Moreover, despite counsel's years of seasoned practice before this Court, he has not acknowledged case law that is contrary to this position or referred to controlling precedent.

Andrews v. West, supra. In December 2001, the Federal Circuit vacated this Court's January 2000 order and remanded the case "for a disposition on the merits in accordance with this opinion, including the Veterans Court's standard of review for the disposition by the Board of Andrews' CUE

claim." Andrews v. Principi, 25 Fed.Appx. at 998-999. The Federal Circuit stated:

While Andrews may not explicitly state "the Board erred," the fact that he is challenging the Board's decision is clear, as the Board affirmed the [RO's] decision denying the CUE claim. Andrews stated in his brief to the Veterans Court that "contrary to both the [RO] and BVA's assertion, such a basis of CUE [,i.e, one alleging that the RO failed to consider all relevant facts of record in making its determination as to a disability rating,] is valid and does not constitute a 'dispute as to how the evidence was weighed.'" Appellant's Brief to Veterans Court at 11. This language clearly demonstrates that Andrews is indeed challenging the determination of the Board that all his [CUE] claim did was allege a defect in how the evidence was weighed. Clearly, Andrews was asserting that the Board erred in not discerning [CUE]. Therefore, it was error for the Veterans Court to dismiss the case on the ground that Andrews had failed to allege error in the Board's decision.

Additionally, in contending that the Board's decision was erroneous, Andrews argued that the Veteran's Court had to review this decision de novo, asserting that a determination respecting [CUE] is a question of law. We agree that Andrews clearly raised a question of law, namely: the proper standard of review for [CUE], which clearly falls within the Veterans Court's jurisdiction. See 38 U.S.C. § 7261(a)(1)....

Accordingly, we remand the case to the Veterans Court for it to decide the proper standard(s) for its review of the Board's determination in this case respecting CUE and then to decide whether under the applicable standard of review the initial denial of the CUE claim was reversible error.

Andrews v. Principi, 25 Fed.Appx. at 998.

II. ANALYSIS Section 5109A of title 38, U.S. Code, provides that "a decision by the Secretary under this chapter is subject to revision on the grounds of [CUE]." 38 U.S.C. § 5109A. If the evidence establishes the error, "the prior decision shall be reversed or revised." Id. Section 3.105(a) of title 38, Code of Federal Regulations, provides that "[p]revious determinations which are final and binding... will be accepted as correct in the absence of [CUE]." 38 C.F.R. § 3.105(a) (2003). A motion by a claimant that there was CUE in a previous RO decision is a collateral attack on that decision. See Smith (William) v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a).

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

Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.... [CUE] is the sort of error which, had it not been made, would have manifestly changed the outcome... [, an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed.

Russell, 3 Vet.App. 310, 313 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir.

1999); Damrel v. Brown, 6 Vet.App. 242, 245 (1994) (quoting Russell, 3 Vet.App. at 313-14). A CUE allegation must identify the alleged error with "some degree of specificity." Crippen v. Brown, 9 Vet.App. 412, 420 (1996); Fugo, 6 Vet.App. at 44 (holding that "to raise CUE there must be some degree of specificity as to what the alleged error is and... persuasive reasons must be given as to why the result would have been manifestly different").

A. Standard of Review As noted above, in its review of this case, the Federal Circuit stated that Mr. Andrews had "clearly raised a question of law, namely: the proper standard of review for clear and unmistakable error," and charged this Court "to decide the proper standard(s) for its review of the Board's determination in this case respecting CUE." Andrews v. Principi, supra. This Court established more than 11 years ago the proper standard of review for considering Board decisions determining

whether CUE had been committed in previous RO decisions:

In Russell, this Court upheld as a valid regulation 38 C.F.R. § 3.105(a), and ruled that we have jurisdiction to review B[oard] decisions on claims that [CUE] had been committed in previous [RO] determinations. [Russell], 3 Vet.App. at 312. We also held in Russell that the scope of our review of such decisions is necessarily limited by our jurisdictional statutes. Id.[] at 314-15. We cannot conduct a plenary review of the merits of the original decision; rather, we are limited to determining whether the B[oard]'s subsequent decision which has considered possible [CUE] in previous adjudications, the one on appeal before us, was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 38 U.S.C. § 7261(a)(3)(A)... ;

Russell, [3 Vet.App.] at 314-15.

Archer v. Principi, 3 Vet.App. 433, 437 (1992) (emphasis added).

In accordance with the directives of the Federal Circuit, this Court here reiterates that the standard of review in this case as to the Board's decision (on the merit of the CUE allegation) is the same standard enunciated in Archer, supra, namely, determining whether the Board decision on appeal to this Court is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in denying the CUE allegation. 38 U.S.C. § 7261(a)(3)(A). The appellant has not presented here a basis, nor can the Court fathom any, for establishing and applying in this case a standard of review different from the standard that has been consistently applied to appellants who, over the past 11 plus years, have alleged CUE in prior final RO decisions. Although Archer and Russell were decided before the CUE law was enacted in 1997, Pub. L. No. 105-111, § 1(a), 717 Stat. 2271 (1997), it has long been established that section 5109A "merely codified 38 C.F.R. §



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