dissenting:
I would reverse the Board of Veterans’ Appeals (BVA or Board) decision and remand the claim of clear and unmistakable error (CUE) for Board adjudication.
By its action today, the Court effectively grants a license to the BVA that permits it, by merely stating that it has reviewed all the evidence of record and decided a claim de novo, to immunize from review for CUE a prior final Department of Veterans Affairs (VA) regional office (RO) decision never appealed to the Board. In practical terms, the Court’s decision obviates a claimant’s rights to the following as to such a claim: To file a claim as to a particular issue (here a CUE claim); to receive a decision on that issue; to identify an issue for appeal and express disagreement; to receive a Statement of the Case; to perfect the appeal and submit argument on behalf of a position; and to receive a hearing.1 It also effectively eliminates the right to judicial review of whether a Board denial of a CUE claim on the merits is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law, a right embedded in our case law since 1992. See Russell v. Principi, 3 Vet.App. 310, 315 (1992) (en banc).
This abrogation of claimant rights is unwarranted as a matter of statutory and regulatory analysis and is inconsistent with Court precedent that has resisted prior attempts by the Secretary to thwart rights to judicial review.
A. The Secretary’s Flawed Position
As a general matter, I reject the position proposed by the Secretary and VA General Counsel’s Precedential Opinion 14-95 (May 12, 1995) [hereinafter G.C. Prec. 14-95] on the basis of Smith (William) v. Brown, 35 F.3d 1516 (Fed.Cir.1994), that, as a matter of law, all merits decisions of the Board on a claim to reopen subsume prior otherwise final (unappealed) decisions of a VARO on the same claim. Moreover, although the Court purports to be limiting its holding regarding “delayed subsuming” under G.C. Prec. 14-95 “to the facts here”, ante at 408,1 believe that the instant facts are such that whatever viability the Secretary’s position has it should not be applied to this case. As to this case, the Secretary’s brief relies upon the fact that the 1988 BVA decision reviewed the evidence “de novo”, apparently found new and material evidence under step two of Manio v. Derwinski, 1 Vet.App. 140, 145 (1991), and then reopened the prior denial of the claim and went on to consider all the evidence of record. See Brief at 12. The G.C. Prec. 14-95 suggests that such a BVA review would always expose any CUE in the prior RO decision and therefore must be considered to have subsumed that prior decision. As demonstrated below, that position is demonstrably incorrect on the facts of this very case.
I. As Applied to Evidence in this Case: Here, even though the 1988 BVA decision considered all the same evidence as did the 1947 RO decision, it also considered new *410negative evidence. There is absolutely no connection between there having been CUE in the 1947 RO decision and the 1988 BVA decision’s having correctly denied service connection because negative evidence newly obtained by that later time precluded an award of service connection. The 1988 BVA decision thus has no bearing upon whether the RO committed CUE in 1947, a determination that we have said time and again is to be “based on the record and the law that existed at the time of the prior ... decision.” Crippen v. Brown, 9 Vet.App. 412, 418 (1996) (quoting Russell, 3 Vet.App. at 314). An adjudication by an RO currently of a claim of CUE in the 1947 RO decision could not and would not produce the kind of collateral attack on the 1988 BVA decision about which the Federal Circuit expressed concern in Smith2, because in that 1988 BVA decision the Board concluded only that, based upon the evidence in 1988, the veteran was not entitled to service connection in 1988. Hence, any RO now adjudicating CUE could not consider the evidence newly presented in 1988 and would be concerned only with the veteran’s entitlement in 1947 on the record then before the RO.
More particularly, the 1988 BVA decision expressly took into account December 1985 and February 1987 VA medical examinations that found no psychiatric disability (Record (R.) at 131-33, 175-76), as well as a February 1986 social and industrial survey (R. at 125-28). In contrast, the 1947 RO decision had before it only the VA diagnosis of psychoneurosis within one year after service (see R. at 68) — which was the only medical evidence in the case at that time as to the appearance of a psychiatric disability within the one-year presumption period.3 The RO in its 1947 decision could have committed CUE by denying service connection if all the evidence were favorable as to the occurrence of a compensable psychiatric disability within an applicable presumption period; in any event, that is the CUE claim that the Board in December 1995 refused to adjudicate and that the Board should be ordered to adjudicate on remand, in my view. See Russell, 3 Vet.App. at 320 (CUE issue properly raised to but not adjudicated by BVA remanded for adjudication by BVA). Hence, on the facts of this case, the 1988 BVA decision cannot properly be considered to have subsumed the 1947 RO decision.
2. Effective-Date Consideration: Quite independent of the evidentiary issues discussed above, which I think are themselves sufficient for rejecting the Secretary’s position as applied to this case, there is also an effective-date issue that demonstrates that the 1988 BVA decision did not subsume the 1947 RO decision. Absent a finding of CUE, the 1988 BVA decision on the claim to reopen could have awarded service connection only from the September 1985 date of that claim to reopen (which the BVA disallowed). See 38 U.S.C. § 5110(a) (effective date of award based on claim to reopen “shall not be earlier than the date of receipt of application therefor”). This would thus have left completely unaddressed the issue of the appellant’s entitlement to service connection for the years between the filing of his original claim in October 1946 and his 1985 attempt to reopen, and that is the essence of the appellant’s current CUE claim that the Board refused to address in its December 1995 decision here on appeal. To put it in regulatory terms, the earlier RO decision is not subsumed in the later BVA decision on the attempt to reopen because the earlier RO decision is still “final and binding” under 38 C.F.R. § 3.105(a) *411(1996) on the question of entitlement between 1946 and 1985. A CUE claim as to the 1947 RO decision could not be a collateral attack on the 1988 BVA decision because that decision did not and could not adjudicate entitlement for the years 1946 to 1985.
3. Regulatory Analysis: Moving to the regulation relied upon by the majority for its decision, 38 C.F.R. § 20.1104 (1996), ante at 407, I am mystified as to how a 1985 RO or 1988 BVA decision can be said to have “affirmed” an unappealed 1947 RO decision within the meaning of that regulation.4 It is undisputed that when the appellant did not file an NOD as to the 1947 RO decision or perfect an appeal to the Board, that decision became final.5 When the RO in April 1986 denied service connection on the claim to reopen, the issue before it was service connection in 1985 and, absent CUE, there was no way for it to affirm, reverse, or otherwise affect the 1947 RO decision in any manner because the RO certainly had no jurisdiction over that final, unappealed decision.6 The 1988 BVA decision could not have subsumed what it had no jurisdiction over. In fact, the “plain meaning” of § 20.1104’s language “affirmed ... by the final appellate determination” is that the decision to be subsumed had to be on direct appeal to the Board. For example, an appellate court “reverses” a decision directly on appeal to it, as I would do in this case, but it “overrules” prior adverse authority that was not appealed.7 It seems axiomatic that because the 1947 RO decision was not on appeal that final decision could not have been affirmed or, therefore, subsumed by a BVA decision 41 years later.
4. Majority’s Alternative Theory: As to the alternative theory put forth by the majority in the last two sentences of its part II — that the granting of the CUE claim and award of service connection as of 1947 would “of necessity mandate service connection to the present time” and “would, in effect, overturn the 1988 BVA decision”, ante at 409, that presents a problem of sorts but not an insurmountable one. The Federal Circuit’s Smith opinion prohibits collateral review by an RO of a BVA decision. Review of the 1947 RO decision, if that decision is not found to be subsumed in the 1988 BVA decision, cannot be collateral review of a BVA decision; the 1988 BVA decision never considered the error that is now up for consideration because, as noted in part A.3., above, that RO decision became final when it was not appealed within a year. A successful CUE challenge to the 1947 RO decision would theoretically create a problem as to the denial of service connection by the 1988 BVA decision because a 1947 grant of service connection could be discontinued only by a decision that would accord with 38 C.F.R. § 3.105(d), and the 1988 BVA decision did not.8 However, the effect on that BVA deei*412sion would not be “collateral” review because, in essence, the RO could find CUE as to service connection in 1947 without in any way addressing the 1988 BVA decision, and that is our only concern at this point.
How long those benefits extend is a matter for another case and is not before us here. It may be true that Smith would absolutely preclude that an award of benefits based on CUE in the 1947 RO decision be extended beyond the date of the 1988 BVA decision— no matter how flawed or correct that 1988 BVA decision was in not applying § 3.105(d) when the Board had no way of then knowing that the veteran “was” service connected as a result of CUE in the 1947 RO decision— unless the Board decides to find “obvious error”, under 38 U.S.C. § 7103(c),9 in its 1988 decision. Nevertheless, an award from 1947 to 1985 would not overlap at all with what was before the Board in 1988 and with what was decided in that Board decision, and an RO decision making such a CUE award therefore could not constitute the forbidden collateral review of that BVA decision.
B. Larger Impact: The Right to Judicial Review
Finally, it should be understood that the doctrine of “delayed subsuming” that the Secretary is propounding is a most pernicious one — it would allow the BVA to wipe out any potential CUE claims as to prior unappealed RO decisions on the same issue under review by the BVA by including in its decision, sua sponte, a sentence stating that it had reviewed the claim de novo, including the disposition of the prior RO decision(s). I do not think that is what the Federal Circuit had in mind in its opinion in Smith. Rather, this situation is analogous to the one presented to this Court in another Smith case, where the Court ruled that the BVA Chairman could not “defeat the right to judicial review at a critical juncture in a case by ordering reconsideration of a prior [BVA] decision which is beyond the reach of that right.” Smith (George) v. Brown, 8 Vet.App. 546, 552 (1996) (en banc). Hence, the Court there held that “the appellant’s right to judicial review of his claim conferred by his postVJRA NOD [Notice of Disagreement]10 and thereafter perfected was not extinguished in this case even though a BVA decision which was based on a pre-VJRA NOD was subsequently vacated and replaced by a BVA reconsideration decision.” ’ Id. at 553. Similarly, this Court has held that the Board cannot refuse to rule on a claim properly appealed to it and thereby deny to a claimant a BVA decision that can then be appealed to this Court. See In the Matter of the Fee Agreement of Cox, 10 Vet.App. 361, 372-73 (1997) [hereinafter In re Cox ].
On the other side of the coin, in Hamilton, the Court noted that “where ... the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative”. Hamilton v. Brown, 4 Vet.App. 528, 544 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994). The Court there stressed:
A contrary result would permit the RO or Board to act in a way that could prejudice a claimant’s enjoyment of statutory and regulatory procedural rights (such as a *413detailed SOC under section 7105(d)) by deciding a claim on a record that had not been adequately developed. See, e.g., 38 C.F.R. § 3.103 (1992) (right, inter alia, to written notice of an RO decision on the claim, to a hearing, to representation, to produce witnesses and introduce any available evidence any arguments, and to VA assistance); Bernard [v. Brown, 4 Vet.App. 384, 392-94 (1993) ].
Ibid. In Sutton v. Brown, 9 Vet.App. 553, 564 (1996) (citing Bernard, 4 Vet.App. at 394), the Court stated:
[W]hen the Board addresses in its decision a question that has not been addressed by the RO, it must consider (1) whether the claimant has been given both adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and (2) whether, if such notice has not been provided, the claimant has been prejudiced thereby.
See also Curry v. Brown, 7 Vet.App. 59, 66-67 (1994). As a general matter, Sutton and Bernard, both supra, stand for the proposition that the Board should not consider issues not considered by the RO decision on appeal to it and if the Board does so it should do so only with the full and informed participation of the appellant.
In the instant case, it is clear that the Board’s action in 1988, while not before us directly in this appeal, is being transformed by the majority into a CUE review as to that RO decision, one made without the participation of the claimant and without his having been advised of the implication of that action.11 This is exactly the kind of unilateral Board action that the fair-process rules established in Bernard and Sutton, both supro, as well as in Thurber v. Brown, 5 Vet.App. 119, 122-23 (1993), and Austin v. Brown, 6 Vet.App. 547, 551-52 (1994), were designed to forestall. Yet, the Court today gives to the Board a similar power to insulate VA decisions from judicial review (in a CUE context) by purporting to have reviewed them and to have done so in a way that will not be subject to judicial review because the RO decision in question was not appealed to the Board by a post-November 17, 1988, NOD.12 The Board (and the majority) have thus stripped from the appellant the right to judicial review that was conferred by his jPOsf-VJRA NOD as to his CUE claim (R. at 282).
The cases discussed above demonstrate a special concern on this Court’s part to guard against unwarranted or unauthorized incursions against judicial review by the Secretary. The only reason for this Court’s existence is to bring to an end a long-entrenched rule where the Secretary was a law unto himself, immune from any judicial scrutiny.13 Just as the Court has refused to permit the Board to act in a way to deny or prejudice judicial review — by, sua sponte or otherwise, reconsidering a prior BVA decision (see Smith (George), supra) or by refusing to issue a BVA decision (see In re Cox, supra ) — or to decide issues not decided by an RO (see Sutton, Curry, and Bernard, all supra), or to decide issues without fair notice and opportunity to respond to Board-acquired evidence (see Austin and Thurber, both supra), so here the Court should not be permitting — in this case or any other — the administrative adjudication of claimant rights without the claimant’s full and fair participation (see Hamilton, supra) or be facilitating the resulting abrogation of a claimant’s right to judicial review.14 As Circuit Judge *414Plager recently wrote: “[W]hen construing ambiguities [in the VJRA, we] should err, if we err at all, on the side of protecting a veteran’s right to the judicial review Congress has mandated”. Barrera v. Gober, 122 F.3d 1080, 1040 (Fed.Cir.1997) (Plager, J., concurring).
. See 38 U.S.C. § 7105(a), (d); 38 C.F.R. §§ 3.103, 19.29, 20.201, 20.202, 20.700 (1996); Austin v. Brown, 6 Vet.App. 547, 551-52 (l994); Thurber v. Brown, 5 Vet.App. 119, 122-23 (1993); Hamilton v. Brown, 4 Vet.App. 528, 544 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994); Bernard v. Brown, 4 Vet.App. 384, 390-91 (1993).
. "[I]n the administrative structure Congress has created, the Board [of Veterans' Appeals (Board or BVA)] is an appellate authority, and the [agencies of original jurisdiction] AOJs are trial-level adjudicators. This ... tends to preclude the inference that the drafters of § 3.105(a) intended [clear and unmistakable error] CUE review to apply to both Board and AOJ decisions, since it would, oddly, permit an inferior to collaterally review the actions of a superior”. Smith (William) v. Brown, 35 F.3d 1516, 1526 (Fed.Cir.1994).
. Service connection for Department of Veterans Affairs (VA) disability compensation purposes wiE be awarded to a veteran who served on active duly during a period of war, or during a post-1946 peacetime period, for any disease or injury that was incurred in or aggravated by a veteran's active service or for certain diseases that were initially manifested, generally to a degree of 10% or more, within a specified presumption period after separation from service. See 38 U.S.C. §§ 1110, 1112(a), 1116, 1131, 1133(a), 1137; 38 C.F.R. §§ 3.303(a), 3.306, 3.307 (1996).
. "When a determination of the [AOJ] is affirmed by the [Board], such determination is subsumed by the final appellate decisions." 38 C.F.R. § 20.1104(1996).
. See 38 U.S.C. § 7105(b)(1), (c); 38 C.F.R. § 20.302(a), (b) (1996); see also 38 C.F.R. § 3.1330 (1938) ("A decision of a rating board unappealed within 1 year shall be final") (this regulation had not been amended as of 1948).
. See Hamilton, 4 Vet.App. at 533 (quoting Strott v. Derwinski, 964 F.2d 1124, 1127-28 (Fed.Cir.1992), which describes process by which veteran can appeal regional office (RO) decision), aff'd, 39 F.3d 1574 (Fed.Cir.1994); Bernard, 4 Vet.App. at 390-92 (detailing the “series of very specific, sequential, procedural steps that must be carried out” to acquire appellate review); Grantham v. Brown, 114 F.3d 1156, 1159 (Fed.Cir.1997) (Archer, Chief Judge, concurring); 38 U.S.C. § 7105; 38 C.F.R. § 20.201 (1996).
. According to Black’s Law Dictionary, a reversal of a judicial decision refers to the "annulling or setting aside by an appellate court of a decision of a lower court”. Black’s Law Dictionary 1319 (6th ed.1990) [hereinafter Black's]. However, a "judicial decision is said to be overruled when a later decision, rendered by the same court or by a superior court in the same system, expresses a judgment upon the same question of law directly opposite to that which was before given, thereby depriving the earlier opinion of all authority as precedent”. Black’s at 1104.
.38 C.F.R. § 3.105(d) (1996) provides now, and did in 1988, the method by which service connection can be severed ”[s]ubject to the limitations contained in § [ ] 3.957”. That subsection, which cites 38 U.S.C. § 1159 for its authority, provides:
Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the *412person concerned did not have the requisite service or character of discharge.
38 C.F.R. § 3.957 (1996); see 38 U.S.C. § 1159 (service-connection award in effect for 10 years cannot be severed "except upon a showing that the original grant of service connection was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge").
. A BVA decision as to "obvious error” is not a matter that this Court may review. See Chisem v. Brown, 4 Vet.App. 169, 177 (1993) (Board has "discretion to correct an 'obvious' error, when one is found” and that discretion is not subject to review in this Court); 38 U.S.C. § 7103(a) (decision of Board is final unless Chairman orders reconsideration), (c) (notwithstanding section 7103(a), Board may correct "obvious error”).
. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) (requiring post-November 17, 1988, NOD as to claim appealed to BVA in order for this Court to have jurisdiction to review BVA decision on that claim); Grantham and Hamilton, both supra note 6.
. See Talbert v. Brown, 7 Vet.App. 352, 355-56 (1995) (Court is without jurisdiction to review CUE claim once adjudicated by the Board and unappealed because that issue is res judicata) (citing Russell v. Principi, 3 Vet.App. 310, 315 (1992) (enbanc)).
. See supra note 10.
. See S.Rep. No. 100-418, at 30-31 (1988) ("This legislation [VJRA] is designed to ensure that all veterans are served with compassion, fairness, and efficiency, and that each individual veteran receives from [ ] VA every benefit and service to which he or she is entitled under law”); 134 Cong. Rec. 31454, 31465 (1988) (statement of Sen. Cranston) (“One of the principal reasons judicial review is needed is to help ensure fairness to individual claimants before [ ] VA”).
.A case such as this may demand a legislative resolution in order to ensure the participatory and fair adjudicative process within VA as well as the availability of judicial review that Con*414gress intended, just as may the situation where the Board, sua sponte, adjudicates a CUE claim without notice to an appellant and thereby denies that appellant an opportunity to bring an appeal to the Court of such an adverse BVA decision because there would be no jurisdiction-conferring NOD, the RO not having addressed CUE. See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (where veteran filed NOD but RO never issued Statement of the Case to enable veteran to perfect appeal to Board, Board erred in treating RO decision as final); Grantham, 114 F.3d at 1158-59 (NOD cannot place in appellate status issue that could not have been decided by RO); Barrera v. Gober, 122 F.3d 1030, 1032 (Fed.Cir.1997) (“court recently held in [Grantham ] that a veteran’s overall claim, or case, for benefits is comprised of separate issues, and that the Court of Veterans Appeals has jurisdiction to consider an appeal concerning one or more of those issues, provided a[n] NOD has been filed after the effective date of the [VJRA] with regard to the particular issue”). But cf. United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 832, 80 L.Ed. 1263 (1936) ("[wjhile the District Court lacked jurisdiction[] we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit”); In the Matter of the Fee Agreement of Hugh D. Cox, 10 Vet.App. 361, 371 (1997) ("if the Court's granting of the petitioner’s petition would lead to a BVA decision over which the Court would have jurisdiction, the Court would possess jurisdiction to issue a writ of mandamus; VA cannot frustrate this Court's statutory appellate jurisdiction by refusing to issue an otherwise required decision that the Court could directly review”).