concurring in part and dissenting in part:
I join in the first two paragraphs of part II.A. of the majority opinion (in part), as to the standard of review applicable to review in this Court of a Board of Veterans’ Appeals (BVA or Board) decision that a claim of clear and unmistakable error (CUE) had not been adequately raised and as to the requisites under our caselaw of a CUE claim, and in part II.B.l. (except for its assumption that a CUE claim was adequately presented below — I would find that it was). I dissent as to part II.A’s conclusion that the appellant’s January 1992 Argument did not adequately raise a CUE claim; as to part II.B.2. and its conclusion that the appellant did not file a jurisdiction-conferring Notice of Disagreement (NOD) as to the CUE claim; and as to part III and its conclusion that the Court lacks jurisdiction as to the CUE claim.1
I will discuss these issues in the order established by the majority.
I. CUE Claim
In the paragraph before the penultimate paragraph of part II.A, the majority concludes that the appellant’s November 1992 Form 9 (Appeal to the BVA) and two other documents “do not meet the Fugo requirement” for raising a claim of CUE in the Department of Veterans Affairs (VA) Regional Office (RO) decision of 1971 or 1974. Ante at 31. I agree. This does not end the matter, however, because the majority’s analysis does not address adequately the appellant’s January 1992 Argument presented to the BVA (after this Court had in November 1991 granted the parties’ joint motion for remand), a document referenced in part I. of the majority opinion. Ante at 31. In that Argument, the appellant’s representative did all that was necessary to raise a CUE claim as to those prior VARO decisions. He asserted that the RO’s February 1971 “deter-*35ruination ... and all subsequent decisions were erroneous for failing to establish entitlement to service connection for bilateral hearing loss by aggravation under the provisions of 38 U.S.C.A. § 1154[and] 38 C.F.R. § 3.306(b)(2)” (R. at 157) and that section 1154 and § 3.306(b)(2) “were not considered or applied to the facts of this ease in any AOJ [ (agency of original jurisdiction) ] rating board decision or by the BVA in 1991, even though the specific regulation was brought to the attention of both the AOJ and the BVA” (R. at 158). The cited statutory provision (section 1154) existed in 1971 as section 354 (38 U.S.C. § 354 (1959)), and the regulatory provision (§ 3.306(b)(2)) was in effect in 1971 in its current form (38 C.F.R. § 3.306(b)(2) (1970)).
Hence, in the words of the Court’s en bane opinion in Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc), quoted by the majority, ante at 31, the appellant asserted that “the statutory or regulatory provisions extant at the time were incorrectly applied” and if correctly applied would, under the evidence then of record, have established entitlement to service connection for aggravation of the appellant’s preexisting hearing loss. R. at 157-59. Thereafter, the Board in February 1992 found new and material evidence, reopened the hearing-loss claim, and awarded service connection. R. at 174-75. The Board did not address the CUE claim but, apparently, returned the case to the RO for the assignment of a rating and an effective date as to that reopened claim. See VA Adjudication Procedure Manual, M21-1 (Manual M21-1), Part IV, para. 8.38(a) (“[w]hen a decision has been made by the BVA, the folder will be returned to the office of jurisdiction”), (b) (“[i]f the BVA reverses a case, refer the claims folder to the rating board or authorization activity, as appropriate, for review and necessary action”); West v. Brown, 7 Vet.App. 329, 338 (1995) (en banc) (Steinberg and Kramer, JJ., dissenting).
The RO then, in a May 1992 decision, assigned a 10% rating and an October 24, 1988, effective date but also did not address the CUE claim. See R. at 179-80. In June 1992, the RO issued another decision on the effective date for the reopened claim; that decision also did not address the CUE claim for an effective date back to January 1971. R. at 184. In the September 1994 BVA decision here on appeal, the Board did not adjudicate the CUE claim for an effective date back to January 1971, but rather found that the appellant had “not adequately raise[d] a question of [CUE].” R. at 3-4. As discussed in part II., below, in order for this Court to have jurisdiction over this BVA decision as to the CUE claim, there must have been a post-November 17, 1988, NOD as to an RO failure to adjudicate such a claim that was presented to the RO.
The question of whether CUE was adequately raised is, as the Court correctly found in part II.A. of the majority opinion, a matter for de novo review by this Court. See Fugo v. Brown, 6 Vet.App. 40, 44-45 (1993) (implicitly adopting de novo review standard where Court decided — without Board having addressed issue — requisite level for reasonably raising CUE claim). In making this assessment at this point in the case, where the BVA has found that a CUE claim was not adequately raised, it must be remembered that all that is before the Court is a threshold question, not whether the CUE claim should have been awarded2 but whether, as a matter of law, the CUE claim was raised with sufficient specificity. See id. at 44.
That question turns on whether the asserted error is the kind that is “undebatable” and “which, had it not been made, would have manifestly changed the outcome at the time it was made” based on the record and law at the time of the RO decision being assailed, Damrel v. Brown, 6 Vet.App. 242, 245 (1994); and whether it is expressed with “some degree of specificity as to what the alleged error is and, unless it is that kind of error ... that, if true, would be CUE on its face, persuasive reasons must be given as to why *36the result would have been manifestly different but for the alleged error.” Fugo, 6 Vet.App. at 44.
Against this framework, I would find, as a matter of law, that the appellant has reasonably raised with sufficient particularity a CUE claim that application of the specific law and regulation pertinent to combat veterans and aggravation of preexisting disability based on the evidence of an increase in disability before the RO in February 1971 would have, on its face, resulted in a finding of aggravation in light of the complete lack of evidence before the RO at that time that the appellant’s increased hearing loss was a result of “normal progression”, as the RO then found (R. at 42). The law then in effect provided: “A preexisting injury or disease will be considered to have been aggravated by active ... 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 (1959); see 38 C.F.R. § 3.306(a) (1970)), and, as to veterans of wartime service, “clear and unmistakable evidence” will be required to “rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service” (38 C.F.R. § 3.306(b) (1970)).
In Akins v. Derwinski, this Court found CUE in an RO’s failure in 1946 to apply Veterans Regulation 1(a), part I, para. 1(b), (d) (1943) — the predecessor provisions of 38 U.S.C. § 353 (1959) and 38 C.F.R. §§ 3.305 and 3.306 as to the presumptions of sound condition and aggravation — reversed the Board’s decision finding no CUE, and directed that a CUE claim be allowed. Akins, 1 Vet.App. 228, 232-33 (1991). As the Court in Akins held:
The application of the regulation granting the presumption of service connection [aggravation] required that evidence rebutting it be presented and be found to be “clear and unmistakable” to defeat the presumption of service connection. Without this evidence, application of Veterans Regulation 1(a), Part I, paragraphs 1(b) and (d) mandated the presumption of service connection.
Akins, 1 Vet.App at 232. Although the Court in Sondel v. Brown dismissed an appeal because the appellant had failed to raise a CUE claim before the Board as to a similar aggravation/service-eonnection issue, the Court noted that the failure of prior adjudications to take the presumption of aggravation into account was a legal, not a factual, matter. Sondel, 6 Vet.App. 218, 220 (1994). The Court stated:
While the appellant has raised the issue of CUE before the Board, he did not raise the specific CUE issue presently before this Court. The record amply demonstrates that the appellant claimed that the prior decisions contained CUE regarding the factual determinations that were made. The appellant never made any allegations before his appeal here that prior adjudications failed to apply the wartime veteran’s presumption of agyravation, the CUE issue he seeks to present to this Court. The failure of prior adjudications to take this presumption into account is a legal matter, while the appellant’s prior CUE claim was entirely fact driven.
Ibid. (emphasis added).
In the present ease, the appellant has asserted more than a disagreement as to how the facts were weighed or evaluated; he has alleged a legal error, the RO’s failure in 1971 to apply correctly the law and regulations as to the presumption of aggravation, which include the requirement that evidence rebutting that presumption be a specific finding of natural progression of the injury or disease supported by “clear and unmistakable evidence”. Hence, I believe that this is the kind of error that “would be CUE on its face” on the record and law before the RO in February 1971. See Akins, 1 Vet.App. at 232 (noting that this Court has held that “failure to observe the requirements of a regulation prejudicial to a veteran constitutes, as a matter of law, clear and unmistakable error”); see also Fugo, 6 Vet.App. at 44 (describing Mata v. Principi 3 Vet.App. 558 (1992) (per curiam order), as an example of a CUE “on its face” error).
That a CUE claim was raised with sufficient particularity in this case flows from *37Fugo, 6 Vet.App. at 44, and the following holding of the Court in Archbold v. Brown:
The CUE claim was first raised by the veteran in the June 1991 letter to the RO. In that letter, although the veteran did not expressly call it a “CUE” claim, the substance of his statement clearly raised CUE in the August 1953 RO decision:
My concern is to have my disability acknowledged and corrected to at least it’s [sic] original 40% which was set on October 9, 1952, at Brooke Army Hospital in San Antonio, Texas.
In summaryf,] I feel that the ... amount paid since September 1, 1953 to present should be corrected, that is a 20% correction for [439] months.
R. at 308, 311; see Mata, [supra ] (concluding that CUE had been properly raised ... even through appellant did not use term “CUE” in her letter).
Archbold, 9 Vet.App. 124, 130-31 (1996).
In this regard, one element of the CUE claim is whether the increase in hearing loss manifested on the separation examination constituted an “increase in disability”. 38 U.S.C. § 353 (1959); 38 C.F.R. § 3.306(a) (1970). This Court has not held that in order for an aggravation claim to succeed the condition at discharge must have then constituted a ratable disability. That is a matter for another day. However, the appellant in his September 16, 1996, memorandum and October 16, 1996, reply memorandum has made out a persuasive ease for the proposition that the healing loss demonstrated in the appellant’s separation examination in December 1970 would at that point have been a ratable disability entitled to service connection under the then-applicable VA rating criteria, Manual M21-1, para. 50.07 (Apr. 30, 1970).3
II. NOD
As the majority opinion concludes in part H.B., it is clear that in order for this Court to have jurisdiction over the CUE-claim issue there must be an NOD, filed after November 17,1988, as to that issue. Ante at 32-34. In order for there to be such an NOD in this case, we would have to make three findings: (1) That a CUE claim was communicated to the RO, Archbold, 9 Vet.App. at 130; (2) that thereafter the RO failed to adjudicate that CUE claim, see Isenbart v. Brown, 7 Vet.App. 537, 541 (1995); and (3) that the appellant, subsequent both to November 17, 1988, and to such an RO decision, expressed disagreement in writing with such failure in terms sufficient to constitute an NOD, ibid.
“Whether a document is an NOD is a question of law for the Court to determine de novo under 38 U.S.C. § 7261(a)(1).” Archbold, 9 Vet.App. at 131 (citing West, 7 Vet.App. at 331-32 (determining whether jurisdictionally valid NOD filed as to claim where Board had made no such determination); Hamilton v. Brown, 4 Vet.App. 528, 538-44 (1993) (en banc), aff'd, 39 F.3d 1574, 1582-85 (Fed.Cir.1994)). An NOD must be a “written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the [AOJ] and a desire to contest the result”. Hamilton, 4 Vet.App. at 531 (quoting 38 C.F.R. § 20.201 (1995)). It “must be in terms which can be reasonably construed as [expressing] disagreement with that determination and a desire for appellate review”. Ibid; see also Archbold, 9 Vet.App. at 130.
In a September 17, 1996, order, the Court directed the Secretary and the appellant to reply to the question whether the appellant’s January 1992 Supplemental Argument, which I would find had raised the CUE claim adequately (see part I., supra), had been returned to the RO in February 1992 (when the Board returned the claims folder to the RO for implementation of the Board’s award of service connection for bilateral hearing loss) or “whether, under VA regulation or guidance, such document should have been” so returned to the RO with the remanded claim. Neither party adequately addressed those questions, and so I believe it is fair to assume that this document was part of the claims file returned to the RO for adjudica*38tion at that time and was thus before the RO when in May 1992 (R. at 179-80) and in June 1992 (R. at 184) the RO failed to adjudicate the CUE claim for an effective date of January 1971, the date when the appellant had originally applied for service connection. Thereafter, in November 1992, the appellant submitted a VA Form 9 requesting an earlier effective date “back to 1971” (R. at 197) and his representative very shortly thereafter submitted a VA Form 1-646 (Statement of Accredited Representative in Appealed Case) that argued that the claim had been “denied on the initial and on several subsequent decisions” and that “because the evidence was there in 1971, which led to the granting of his claim, [VA] was in error and should establish an earlier effective date” (R. at 201).
These statements were submitted to the RO in writing and referred to the claim for an effective date “back to 1971” and referred to the error made by RO prior decisions in denying the claim. In my view, under Isenbart, 7 Vet.App. at 541, they “sufficiently encompassed the RO’s failure to adjudicate the ... claim” in question, and the Form 1-9 itself, given its title, “Substantive Appeal to the BVA”, sufficiently manifested “a desire for appellate review” under 38 C.F.R. § 20.201. Hence, I would find a post-VJRA, jurisdiction-conferring NOD as to the CUE claim.
The determination as to whether the VA Forms 9 and 1-646 constituted an NOD is controlled by this Court’s holding in Arch-bold that a Form 1-9 (Substantive Appeal to the BVA), “contending that, inter alia, [the appellant] was entitled to a 40% rating for his hand-scar residuals based on the MPBE’s [ (Military Physical Evaluation Board) ] having rated them permanently disabled at 40% ... and that this amount should be corrected for the past 400 months” was “sufficient [as an NOD] to initiate review of the CUE claim by the Board.” Archbold, 9 Vet.App. at 131; see also Hamilton, 4 Vet.App. at 538 (implicitly approving holding in Malgapo v. Derwinski, 1 Vet.App. 397, 398-99 (1991) (per curiam order), that a VA Form 1-9 “can itself be an NOD” as to a claim as long as it is the first NOD filed as to that particular claim).
III. Conclusion
Hence, I would conclude that this Court has jurisdiction over the CUE issue, would reverse the Board decision that a CUE claim was not adequately raised, and would remand for the Board to adjudicate the CUE claim on the merits or to remand it to the RO for initial adjudication. See Archbold, 9 Vet. App. at 133, 134 (remanding for adjudication of CUE claim); Russell, 3 Vet.App. at 320, 322; cf. Sondel, supra.
For the foregoing reasons, I dissent from the Court’s result in this ease and so much of its reasoning as I have indicated above.
. I note with puzzlement that the Court affirms the Board rather than dismissing the appeal for want of a jurisdiction-conferring Notice of Disagreement (NOD). See Hamilton v. Brown, 4 Vet.App. 528, 545 (1993) (en banc) (dismissing appeals when Court finds lack of such an NOD), aff'd, 39 F.3d 1574, 1586 (Fed.Cir.1994).
. The question before the Court when reviewing a BVA decision denying a CUE claim is whether that BVA denial of a CUE claim was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 38 U.S.C. § 7261(a)(3)(A); see Damrel v. Brown, 6 Vet.App. 242, 246 (1994); Russell v. Principi, 3 Vet.App. 310, 315 (1992) (en banc).
. The Secretary concedes in his September 26, 1996, response that this was the applicable rating provision and constituted a "substantive rule” (Response at 2).