concurring:
I concur in the majority opinion, but I write separately regarding my reasons for concluding that the Court’s interpretation of 38 C.F.R. § 3.105(a) (1996) in Russell v. Principi, 3 Vet.App. 310 (1992) (en banc), and Damrel v. Brown, 6 Vet.App. 242 (1994), provides no impediment to the denial of the appellant’s claim for reinstatement of the award of service connection for the veteran’s death.
The appellant correctly observes that under Russell and Damrel, and pursuant to 38 C.F.R. § 3.105(a), clear and unmistakable error can be found only upon “the record and law that existed at the time of the prior adjudication in question.” Damrel, 6 Vet.App. at 245 (citing Russell, 3 Vet.App. at 313-14). The appellant therefore objects to the use by the Department of Veterans Affairs (VA), as a basis for discontinuing the November 1991 VA regional office award of dependency and indemnity compensation (DIC), of personnel records that were received after that award.
However, 38 U.S.C. § 3.105(d), which provides expressly for the specific situation of severance of an award of service connection, clearly does not contemplate the same situation or implicate the same potential risks as the general provisions of § 3.105(a). Cf. Graves v. Brown, 6 Vet.App. 166, 170-71 (1994) (discussing § 3.105(d)’s clear and unmistakable error (CUE) provisions in juxtaposition with the Russell criteria concerning § 3.105(a), including the requirement that a determination of CUE be based upon “the record and the law that existed at the time of *343the prior decision”). On its face, § 3.105(d) — unlike § 3.105(a) — anticipates the use of new or modified laws and regulations (“[w]here service connection is severed because of a change in or interpretation of a law or [VA] issue ...”, 38 C.F.R. § 3.105(d)) and of records acquired subsequent to the original VA decision (“[a] change in diagnosis may be accepted as a basis for severance”, ibid.). Moreover, termination pursuant to § 3.105(d), unlike termination pursuant to § 3.105(a), is not retroactive. Under § 3.105(d), “the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires”.
Under the Court’s caselaw, service department records are binding upon VA for establishing service in the U.S. Armed Forces, Duro v. Derwinski, 2 Vet.App. 530, 532 (1992), and for establishing whether an individual was on active duty, active duty for training, or inactive duty training, Cahall v. Brown, 7 Vet.App. 232, 237 (1994). If the Court were to conclude that the Graves dictum that suggests that a service-connection award can be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record. In the instant case, under the appellant’s proposed reading of § 3.105(d), VA would be caught between the mutually exclusive imperatives of service department records that are binding upon it and a prior RO decision that would not admit of correction based upon those new records. The burden placed upon VA by § 3.105(d) in order to succeed in demonstrating error in a prior decision is high, but it is not meant to be insurmountable.
Because, as the Court today concludes, the BVA could have concluded that any award of DIC in this case was “clearly illegal”, pursuant to the preamble to § 3.105, and because the RO provided all the procedural rights that attach pursuant to § 3.105(d) prior to the severance of a service-connection award, the BVA’s consideration of this case as one for DIC restoration rather than as a challenge to the propriety of DIC termination was nonprejudieial error. Where an appellant has not been harmed by an error in a Board determination, the error is not prejudicial. See 38 U.S.C. § 7261(b) (“Court shall take due account of the rule of prejudicial error”); Edenfield v. Brown, 8 Vet.App. 384, 390-91 (1995) (en banc). Accordingly, I concur in the Court’s disposition of the case.