concurring:
I concur in the result because I must. I am compelled to follow, in a panel opinion or single-judge decision, the Court’s binding precedent. See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (“panel or single judge may not render a decision which conflicts materially with [ ] earlier panel or en banc opinion”). However, I disagree strongly with the result because I disagree strongly with the operative authority, Donovan v. Gober, 10 Vet.App. 404 (1997), on which it is based. I stated my bases for disagreeing with Donovan in my dissent there, id. at 409-14 (Steinberg, J., dissenting). However, the majority is correct that the applicable law has been changed by Donovan — no matter how much I disagree with that change — and hence the law-of-the-case doctrine does not apply. See Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed.Cir.1985); Chisem v. Brown, 8 Vet.App. 374, 375 (1995).
Donovan was bad enough, even though it purported to apply its holding only to its particular “facts”, id. at 528.1 In the instant case, the Court chooses to state Donovan’s holding as broadly as possible and to quote with approval the sweeping opinion of the General Counsel of the Department of Veterans Affairs (VA). Ante at 406-07. As I admonished in Donovan, that VA General Counsel position would give the Board of Veterans’ Appeals (BVA or Board) a green light “to wipe out any potential [clear and unmistakable error (CUE) ] claims as to pri- or unappealed regional office (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).” Donovan, 10 Vet.App. at 412 (Steinberg, J., dissenting).2 This VA position, now being fully embraced by the Court, has extremely negative implications for VA claimants, who are thereby being denied both the procedural appellate rights that adhere within the VA system and judicial review before this Court.3
*530The holding of the U.S. Court of Appeals for the Federal Circuit in Smith (William) v. Brown is no more than that the CUE review provisions of 38 C.F.R. § 3.105(a) do not apply to BVA decisions — that final BVA decisions are immune from CUE review. Smith, 35 F.3d 1516, 1527 (Fed.Cir.1994) (“CUE review authority in § 3.105(a) [ ] relate[s] only to review of [agency of original jurisdiction (AOJ) ] adjudications and not to those of the Board”). The opinion in Smith does not impose a presumption as to the correctness of those BVA decisions. Nonetheless, because under Smith, supra, the 1953 BVA decision is unreviexvable for CUE, this Court’s holding today permits the BVA to render the final, unappealed 1947 RO decision immune from a challenge based on CUE by virtue of the BVA’s having in 1953 decided, based on the evidence then before it, that service connection for a psychiatric disability could not properly be allowed. The Court’s action seems to be imposing a presumption that the later, unconnected BVA decision was correct — not just that it was immune from review — and moreover that it was “correct” six years before it was made. I believe that the Federal Circuit would be quite surprised to learn that Smith required such a leap, and I hope that the Circuit will be afforded an opportunity to consider that question.
Moreover, our caselaw has emphasized that review for CUE is to be “based on the record and the law that existed at the time of the prior AOJ” decision. Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc). By superimposing the 1953 BVA decision onto the unappealed 1947 RO decision, the Court is acting in a manner inconsistent with Russell by applying later law (in the form of the 1953 BVA decision) to a point in time (1947) when it did not exist. CUE review of a final 1947 RO decision would have to occur, under Russell, on the record as it existed in 1947, and I fail to see how the 1953 BVA decision has a role to play. Even were the RO here to have taken up the current CUE claim as to the 1947 RO decision denying service connection, it would not have been second guessing the 1953 BVA decision as to the period from 1947 to the date of the application leading to the 1953 BVA decision.4 And what the Board would later decide to do with the obvious-error claim as to the 1953 BVA decision, especially if there were to be a finding of CUE in the 1947 RO decision, is not a matter presently before us.5
The “pernicious doctrine” of delayed subsuming that I pointed to in my dissent in Donovan, 10 Vet.App. at 412, has now become embedded in our caselaw. If there were any doubt after Donovan about the need for action — legislative or appellate — to protect veterans from having their CUE rights trampled by the Board’s sua sponte action, the majority opinion here should remove any such doubt. See Donovan, 10 Vet.App. at 413 n. 14.6 As Circuit Judge Plager cautioned recently in Barrera v. Gober, regarding the actions of two panels of the Federal Circuit to overrule another misguided opinion of this Court, “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, 122 F.3d 1030, 1040 (Fed.Cir.1997) (Plager, J., concurring).7
. However, Donovan v. Gober, 10 Vet.App. 404 (1997), had a particularly bad set of facts for application of the "delayed subsuming” theory because in Donovan it was clear that the facts before the Board of Veterans' Appeals (Board or BVA) when it later adjudicated the case included additional negative evidence not before the regional office at the time of its earlier, unappealed decision. See id. at 409-10 (Steinberg, J., dissenting).
. In order to attempt to cloak the grave adverse consequences of its actions for Department of Veterans Affairs (VA) claimants, the majority conjures up the smokescreen of a bad-faith assumption on my part. Quite to the contrary. I accept that the members of the Board proceed in good conscience to carry out their duties in accordance with law. What the above and ensuing sentences (and the quotation from Donovan, supra ) relate to is the effect of a particular Board course of action without regard to the motivation for that action. See also infra note 3. As to expressions of concern by this Court about the effect of BVA actions, the en banc Court stated, through one of the majority judges here, in Smith (George) v. Brown: "To allow that date [November 18, 1988, in the Veterans’ Judicial Review Act (VJRA) § 402, Pub.L. No. 100-687, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note)] to be used by the BVA Chairman as a shield against judicial review would be to give that date meaning beyond that intended in enacting judicial review.” Smith, 8 Vet.App. 546, 552 (1996) (en banc); see In the Matter of Fee Agreement of Cox, 10 Vet.App. 361, 371 (1997) (”[i]f the BVA otherwise has the authority and obligation to issue a decision, its refusal to do so would frustrate this Court’s jurisdiction and, if the other requirements for an extraordinary writ are met, would justify an issuance of a writ”); see also Sutton v. Brown, 9 Vet.App. 553, 564 (1996) (cautioning against Board addressing questions not addressed by VA regional office decision on appeal); Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993).
.As I noted in Donovan, 10 Vet.App. at 409-10, the Court’s decision obviates a claimant’s right to file a claim as to a particular issue (here a claim *530of clear and unmistakable error (CUE)); to receive a decision on that issue; to identify an issue for appeal and express disagreement by filing a Notice of Disagreement (NOD); to receive a Statement of the Case; to perfect the appeal and submit argument on behalf of a position; and to receive a hearing. 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 (1994); 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, 4 Vet.App. at 390-91. Moreover, although not relevant to the case at hand because the Court concludes that a 1953 Board decision — made long before judicial review was available in this Court — subsumed a CUE claim, similar action by the Board in a post-November 17, 1988, decision would appear to be unreviewable in this Court for want of a jurisdiction-conferring NOD as to the CUE claim raised sua sponte by the Board. See VJRA § 402, 102 Stat. at 4122.
. See Donovan, 10 Vet.App. at 409-11 (Steinberg, J., dissenting).
. Id. at 411-12.
. See supra note 3.
. The court's opinion in Barrera noted that in Grantham v. Brown, 114 F.3d 1156 (Fed.Cir. *5311997), the Circuit had already "overruled" this Court’s opinion in West (Walter) v. Brown, 7 Vet.App. 329 (1995) (en banc). Barrera v. Gober, 122 F.3d 1030, 1032 (Fed.Cir.1997); see also Grantham, 114 F.3d at 1160 (Archer, C.J., concurring).