Lanier v. Hines v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 01-2030

LANIER V. HINES, APPELLANT ,

v.

ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued January 15, 2004 Decided August 17, 2004)

Howard M. Sanders, of Columbus, Ohio, for the appellant.

Rebecca L. Ahern Baird, with whom Tim S. McClain, General Counsel; R. Randall
Campbell, Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General
Counsel, all of Washington, D.C., were on brief, for the appellee.

Before KRAMER, Chief Judge, and STEINBERG and GREENE, Judges.

STEINBERG, Judge, filed the opinion of the Court. KRAMER, Chief Judge, filed a
dissenting opinion.

STEINBERG, Judge: The appellant, through counsel, seeks review of an August 24, 2001,
Board of Veterans' Appeals (Board or BVA) decision that concluded that there was no clear and
unmistakable error (CUE) in a June 17, 1976, Department of Veterans Affairs (VA) regional office
(RO) decision that had denied VA service connection for hypothyroidism. Record (R.) at 1-30. The
appellant and the Secretary each filed a brief, and the appellant filed a reply brief. This appeal is
timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons
set forth below, the Court will vacate the Board decision and remand the matter for further
development and readjudication.
 I. Relevant Background
The appellant had qualifying service in the U.S. Army Reserves from May 1975 to March
1976. R. at 33. In a December 1974 preservice clinical evaluation report, an examiner checked the
"normal" box next to "endocrine system" (R. at 35) and the appellant, in responding to the question
"Have you ever had or have you now" such a condition, checked the "No" box next to "thyroid
trouble"; the appellant also reported that he was in "[e]xcellent [h]ealth" (R. at 37).
The appellant was diagnosed in service as having thyrotoxicosis in June 1975 (R. at 50); that
same month, he was admitted to Brooke Army Medical Center (Brooke AMC) and diagnosed as
having, inter alia, hyperthyroidism and Graves' disease; these conditions were the primary basis for
his admission (R. at 173). ("Thyrotoxicosis" is "the condition caused by excessive quantities of
thyroid hormones." DORLAND 'S ILLUSTRATED MEDICAL DICTIONARY 1711 (28th ed. 1994)
[hereinafter DORLAND 'S]. "Hyperthyroidism" is "a condition caused by excessive production of
ionated thyroid hormones and marked by goiter, tachycardia or atrial fibrillation, widened pulse
pressure, palpitations, fatigability, nervousness and tremor, heat intolerance and excessive sweating,
warm, smooth, moist skin, weight loss, muscular weakness, hyperdefecation, emotional lability, and
ocular signs." DORLAND 'S at 802 (emphasis added).) In a July 1975 VA examination report, the
examiner noted that the appellant "has obvious hyperthyroidism historically, clinically, and by lab
studies." R. at 72 (emphasis added). After the appellant was hospitalized for 51 days at Brooke
AMC, an August 1975 discharge summary included an examiner's note that "[t]he patient was in his
usual state of health until approximately one year prior to admission when he began to note weight
loss despite adequate food intake, approximately 19 pounds over the past year"; for approximately
two months prior to admission, he had experienced "the onset of increasing nervousness [and]
pounding heart beat"; and for approximately six months before hospital admission he had
experienced heat intolerance; the examiner also stated that the appellant's mother had experienced
"'thyroid trouble'". R. at 56. The discharge summary diagnosed the appellant as having
"[h]yperthyroidism [(emphasis added)], Graves' disease", which was treated with Iodine-131 (I-131).
R. at 58. (I-131 is "a radioactive isotope of iodine . . . most commonly used in the treatment of both
benign and malignant disease of the thyroid gland." DORLAND 'S at 1045, and Graves' disease is a

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"disorder of the thyroid . . . characterized by at least two of the following: [H]yperthyroidism, goiter,
and exophthalmos." DORLAND 'S at 482 (emphasis added).)
In a November 1975 service medical record (SMR), the examiner noted that the appellant
had symptoms of face puffiness, decreased energy, constipation, and dry skin and stated that he had
hypothyroidism secondary to his I-131 medication (R. at 185); that same month an examiner
diagnosed the appellant as "[f]ound to be hypothyroid now as suspected" (R. at 186) (emphasis
added). (It is unclear whether the same examiner made both sets of notes.) ("Hypothyroidism" is
"deficiency of thyroid activity. In adults, it is most common in women and characterized by decrease
in basal metabolic rate, fatigue and lethargy, [and] sensitivity to cold." DORLAND 'S at 811 (emphasis
added).) A provisional diagnosis in January 1976 on an SMR consultation sheet noted that he had
hypothyroidism, secondary to his hyperthyroid treatment. R. at 194. An SMR entry in early
February 1976 reported symptoms of lethargy and fatigue and that the appellant was on "Synthroid".
(Synthroid is "a preparation of levothyroxine sodium" that is prescribed for "reduced or absent
thyroid function". Dorland's at 918, 1649.) Ibid. Also, in a February 1976 SMR, an examiner
checked the "abnormal" box next to the clinical evaluation for "endocrine system" (R. at 199) and
indicated that the appellant's hyperthyroidism was "controlled" and that he was currently diagnosed
as having hypothyroidism (R. at 200). A March 1976 SMR indicated that his thyroid studies yielded
results within normal limits. R. at 217. That same month, he submitted to a VARO a VA
compensation and pension (C&P) application for "[h]yperactive thyroid condition [with] residuals
of nuclear radiation". R. at 242. A May 1976 VA C&P examination report of the appellant included
a diagnosis of "normal" for the general medical examination except for hypothyroidism. R. at 254-
55.
In a June 17, 1976, RO decision, the decision being collaterally attacked in this appeal, the
RO considered the appellant's claim for service connection for "hyperactive thyroid condition [with]
residuals of nuclear radiation", and "determine[d] that the evidence of record indicate[d] that his
thyroid condition pre[]existed service and was not aggravated, but actually improved in service with
treatment", and denied service connection for hypothyroidism. R. at 259. On July 7, 1976, he
submitted a statement regarding that June 1976 RO decision and VA construed it as a Notice of
Disagreement (NOD); he stated that his hypothyroidism had begun in service and that he "would like

3
this rating appealed" because his hypothyroidism medication (apparently referring to Synthroid) was
expensive. R. at 261. The RO issued a Statement of the Case (SOC) in July 1976 concluding that
"service connection for hypothyroidism is not established" and citing as pertinent laws and
regulations only 38 U.S.C. §§ 310 and 331 and 38 C.F.R. § "3.306(B)", and describing that
regulation as providing that "[a]ggravation may not be conceded where the disability underwent no
increase in severity during service on the basis of all the evidence of record pertaining to the
manifestations of the disability prior to, during[,] and subsequent to service." R. at 266 (emphasis
added). It appears that the appellant did not submit a Substantive Appeal as to the June 1976 RO
decision. R. at 272.
In September 1981, the appellant sought to have his claim reopened (R. at 280); however,
that same month, the RO confirmed its previous denial of service connection for the appellant's
hypothyroidism (R. at 283). A year later, he again notified the RO that he wanted to have his claim
reopened (R. at 207), and, subsequently, a January 1983 decision confirmed the previous decision
declining to reopen his claim (R. at 302). After he submitted an NOD, the RO stated in a March
1983 SOC that the claim to reopen had been denied because, inter alia, there was "no evidence that
the condition was aggravated beyond the natural progress of the disease by the appellant's service."
R. at 310-11. In the SOC, the RO cited specifically to "38 C.F.R. § 3.306(B)(1)", describing that
regulation as providing that "[t]he usual effect of medical and surgical treatment in service, having
the effect of ameliorating diseases or other conditions incurred before enlistment, including poorly
functioning parts or organs, will not be considered service connected unless disease or injury is
aggravated in service." In an April 1983 Substantive Appeal, the appellant stated that he "was in
worse medical condition when [he] left the service" after being "free of any major d[i]sease most of
[his] life up until [his] internment in the military." R. at 313.
In an October 1983 BVA hearing, the appellant testified under oath that he disagreed with
the previous characterization of his symptoms; he stated that he had experienced symptoms of
nervousness because military service "was a big jump" for him and that he had experienced heat
intolerance because of a heating situation in his apartment. R. at 364. In response to questions by
the hearing officer, he agreed that his two main contentions were (1) that his SMRs mischaracterized
the facts and (2) that he had not had a thyroid condition before service. R. at 366. A December 1983

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BVA decision remanded to the RO his claim for service connection to obtain his complete medical
and military personnel records and to schedule him for a VA examination "to determine the nature,
extent, and current diagnosis of all residuals of treated hyperthyroidism." R. at 381-82 (emphasis
added). The RO then issued, in October 1984, a Supplemental SOC (SSOC) explaining that a
previous RO decision issued that same month (see R. at 446-47) had denied service connection for
a thyroid condition on the ground that medical treatment reports "confirm the history, taken at the
time, of symptomatology of the thyroid condition pre[]existing entry into military service[; n]o
aggravation beyond a normal progression of the disease was shown." R. at 385.
An October 1984 RO decision denied service connection for hypothyroidism and stated that
the appellant was "euthyroid at time of separation." R. at 447. ("Euthyroid" indicates the presence
of "normal thyroid gland function." DORLAND 'S at 588.) A March 1985 BVA decision denied
service connection for "residuals of treated hyperthyroidism" because new and material evidence had
not been submitted to reopen the June 1976 RO decision. R. at 458-59 (emphasis added). On
reconsideration in March 1986, the Board confirmed that decision. R. at 484. In an October 1988
letter to the RO, the appellant requested that his service-connection claim be reopened and submitted
letters from laypersons regarding his good health at the time of enlistment. R. at 486, 490-96. In
January 1989, the RO determined that these letters were not "sufficient" to reopen his claim. R. at
500. In a February 1991 SOC, the RO further explained that because "standard medical textbooks
indicate that although the clinical presentation of hyperthyroidism may be highly variable, it
frequently follows a clear pattern, [and] the statements of the various persons, including the
[appellant]'s parents, that he had no serious or unusual illnesses before service, do not present any
new facts not already considered." R. at 520 (emphasis added).
In April 1991, the RO received from the appellant a copy of an October 1990 letter from Dr.
Francis Greenspan to the appellant and a copy of a letter from Dr. Jose Galindo, Jr., to Dr. Marvin
Siperstein, Chief of the Metabolic Section at a VA Medical Center. R. at 527-30. Dr. Galindo
discussed hyperthyroidism generally, including an observation that hyperthyroidism may stem from
"some type of stress be it emotional or physical", but stated that he could not "really comment on
your case", and he apparently never examined the appellant. R. at 527. Dr. Greenspan examined
the appellant and diagnosed him as having "Graves' disease, treated with radioactive iodine with

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excellent result" and "[p]ost[]radiation hypothyroidism"; he noted: "I think there is no question that
this patient developed his Graves' disease while he was in the service; he was treated extremely well,
has had an excellent response, but will require I-thyroxine therapy and periodic monitoring of blood
tests for the rest of his life." R. at 528-29 (emphasis added). Dr. Greenspan further stated that the
appellant had "a strong genetic pre-disposition to the disease, as evidenced by the positive family
history" in his background. R. at 529.
In a June 1991 decision, the RO confirmed the October 1984 RO denial of service
connection; the RO noted that "[t]he opinion [of Dr. Greenspan] that the [appellant]'s condition
began in service is not supported by the facts" because the appellant had himself stated in June 1975
that he had a "one[-]year history of progressive symptoms". R. at 550. At a February 1992 BVA
hearing, the appellant testified under oath that he had been in good health before entering service.
R. at 604. He agreed that he had acquired hypothyroidism because of the medication he was taking
for his hyperthyroidism. R. at 606. He stated that in August 1975 the doctors had "manipulated"
his symptoms at the time that he was diagnosed as having Graves' disease; he stated that he had
intentionally lost 20 pounds, that any nervousness he had had was related to entering service for the
first time, that he had not had a pounding heartbeat, and that his intolerance to heat manifested itself
because he had been situated too close to a heating vent. R. at 613.
In May 1993, the Board denied service connection for a thyroid disorder. R. at 631. The
Board noted that "the medical evidence from [the appellant's] period of active[-]duty[-]for[-]training
service that is available clearly demonstrates that his thyroid disorder had been manifested prior to
his entrance into active[-]duty[-]for[-]training service." R. at 628. The appellant appealed to this
Court, and in May 1995 the parties filed a joint motion for remand; they requested that the Court
vacate the May 1993 BVA decision and remand for "further development and readjudication of the
[a]ppellant's claim". R. at 636. The Court, by an order of the Clerk of the Court, granted the joint
motion that same month. R. at 648. In October 1995, the Board (1) reopened the appellant's claim
for service connection for a thyroid disability after concluding that new and material evidence had
been presented in the form of statements regarding his good health before service and medical
statements from two private physicians, (2) remanded the case to the RO to afford him a

6
comprehensive medical examination, and (3) directed the RO, following the examination, to review
his service-connection claim in light of the entire record. R. at 656-58.
In a January 1996 VA medical report, the examiner, Dr. Siperstein, stated that the appellant
was "both chemically and clinically euthyroid" with his medication. R. at 666. He further noted
(1) that "[f]rom the history obtained on admission to [Brooke AMC], there is little question that the
patient in fact did have some of the typical symptoms of hyperthyroidism prior to his induction into
the service" (R. at 667 (emphasis added)) and (2) that the appellant's hyperthyroid condition "clearly
did worsen to the point of being clinically apparent shortly after induction into the Army" (R. at 668).
Dr. Siperstein also stated that "as a direct result of the iodine treatment the appellant became
hypothyroid, . . . remained hypothyroid for the past 20 years and no doubt will continue to be
hypothyroid for the rest of his life" and concluded that "[t]here is no other reasonable explanation
for the patient's 20 years of hypothyroidism other than the treatment, albeit appropriate, which he
received during his Army service." R. at 668 (emphasis added). Dr. Siperstein opined that "by the
usual standards in such cases[, the appellant] has a service[-]connected disability, i.e.,
hyperthyroidism worsening to the point of diagnosis in service, plus a condition induced by
treatment in service, i.e. hypothyroidism." R. at 669 (emphasis added).
A February 1996 RO decision awarded the appellant service connection for hypothyroidism
that "existed before service but was aggravated by service" and assigned a 10% rating, effective from
October 24, 1988, the date that his claim was reopened. R. at 673-75. In August 1996, the BVA
Senior Deputy Vice Chairman denied the appellant's May 1996 construed motion for reconsideration
of (1) the March 1985 BVA decision and (2) the March 1986 BVA reconsideration decision that had
concluded that new and material evidence had not been presented to reopen the appellant's claim for
service connection for residuals of treated hyperthyroidism. R. at 689.
In an April 1997 decision, the RO concluded that there was no CUE in the June 1976 RO
decision; the appellant had argued, inter alia, that the decision contained CUE because the RO had
failed to consider the presumption of soundness, aggravation, and all the evidence that was in the
record at that time. R. at 699. On appeal again, the Board found in April 1999 that there was no
CUE in the June 1976 RO decision and that the appellant had essentially argued against "how the
RO weighed the extant evidence". R. at 819. The appellant appealed the BVA decision, and on

7
November 30, 2000, the Court vacated the April 1999 BVA decision and remanded the CUE matter
because the Board's deficient analysis was "not in compliance with either 38 U.S.C. § 7104(d)(1) or
§ 7261(a)(3)(A)"; the Court concluded, inter alia, (1) that the lay reports submitted by the appellant
did not demonstrate the preexistence of hypothyroidism, (2) that there was no medical evidence in
the record showing that the preexistence of hyperthyroidism "implies the preexistence" of
hypothyroidism, and (3) that the Board's statement of reasons or bases was inadequate. Hines v.
Gober (Hines I ), No. 99-1379, 2000 WL 1771071, at *4 (Vet. App. Nov. 30, 2000) (single-judge
decision).
In the August 2001 BVA decision here on appeal, the Board determined that the 1976 RO
decision did not contain CUE. R. at 30. The Board reviewed pertinent regulations in effect as of
June 1976. R. at 15-17. Answering the appellant's arguments, the Board then concluded the
following: (1) VA's failure to provide an examination was not CUE because the duty to assist cannot
constitute grounds for CUE; (2) the RO's failure to consider the May 1975 VA examination was not
CUE because the appellant did not specifically assert how the RO's decision would have been
different but for that error; and, because prior to February 1990 the RO was not required to
summarize the evidence reviewed in making a decision, any omission of evidence from the record
before February 1990 did not demonstrate failure to consider evidence of record (citing Eddy v.
Brown, 9 Vet.App. 52 (1996)); (3) the RO's finding that hyperthyroidism preexisted service was not
CUE because the presumption of soundness did not apply to the appellant under 38 C.F.R. § 3.1(d),
3.6(a), or 3.304(b) (1975); and (4) a claim that the "RO improperly relied on lay accounts of
pre[]service symptoms to establish that hyperthyroidism preexisted service, based on Court
precedent, cannot constitute a valid CUE theory; R. at 19-24 (emphasis added). The Board then
determined that the appellant had presented a valid CUE claim regarding his "allegation that the RO
had erroneously based its denial of service connection for hypothyroidism on the circumstances
surrounding the history and treatment of his hyperthyroidism [and that he] ha[d] sufficiently raised
the assertion that the RO did not have the correct facts before it when it made its decision." R. at 24
(emphasis added). The Board nonetheless concluded that, under 38 C.F.R. § 3.306(b)(1) as in effect
in 1975, the "usual effects" of medical/surgical treatment in service that ameliorate disease or other
conditions incurred before enlistment do not equate to service connection unless the disease/injury

8
is otherwise aggravated by service, 38 C.F.R. § 3.306(b)(1) (1975), and that the RO in 1975, "could
arguably", and, apparently, properly, have denied service connection on the basis of that regulation.
R. at 27.

II. Contentions on Appeal
In his brief, the appellant contends that the Court should reverse as clearly erroneous the
August 2001 BVA decision or, in the alternative, vacate that decision and remand the matter because
the Board did not provide an adequate statement of reasons or bases. Brief (Br.) at 7. He argues that
the Board failed to consider 10 U.S.C. § 1219 as implemented by 38 C.F.R. § 3.304(b)(3) regarding
"signed statements of appellants relating to the origin, or incurrence of any disease or injury made
in service"; he contends that statements made against the interest of an appellant cannot be
considered. Br. at 12. In addition, he states that "there was otherwise no competent medical
evidence that existed in the record that the appellant had a preexisting thyroid condition." Br. at 11-
12. The appellant asserts that, in consideration of these factors, there was CUE in the June 1976 RO
decision that denied service connection for hypothyroidism, which had first been diagnosed while
the appellant was in service. Br. at 12.
The appellant characterizes the Board's § 3.306(b)(1) "usual effects" discussion as
"convoluted" and asserts that hyperthyroidism and hypothyroidism are distinct conditions that are
assigned "independent" rating codes under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7900, 7903
(2003). Br. at 12. He argues that if the Board had properly applied the presumption of soundness
(38 C.F.R. § 3.304(b)(3)), the Board would not have reached the "usual effects" argument because
except for the appellant's own statements regarding his symptoms, the record does not include any
other evidence that his hyperthyroidism preexisted service. Br. at 13. Moreover, he maintains that
even if the evidence suggested preexisting hyperthyroidism, "there is no competent, independent
medical evidence in the record that the 'usual effects' of hyperthyroidism treatment lead to
hypothyroidism." Br. at 13 (emphasis added). Furthermore, if hyperthyroidism preexisted service
and hypothyroidism is a "usual effect" of that condition, CUE exists because the appellant was not
awarded service connection for hypothyroidism in 1975 and 1976 based on aggravation of that
condition, even though his February 1976 separation examination report indicated that he was on

9
medication to control that condition. Br. at 14. The appellant further argues that even though a
diagnosis in a March 1976 medical record indicated that his thyroid testing revealed a "normal"
condition that does not show that his condition was cured because both hyperthyroidism and
hypothyroidism are chronic diseases under 38 C.F.R. § 3.309(a). Ibid.
In the alternative, the appellant contends that the Board decision should be vacated and the
matter remanded for the reasons stated above and because under Colvin v. Derwinski, 1 Vet.App.
171, 175 (1991), the Board decision "should not have been made in the absence of independently
obtained medical evidence" (Br. at 14-15), and he challenges the adequacy of the Board's statement
of reasons or bases pursuant to 38 U.S.C. § 7104(d)(1) (Br. at 15).
The Secretary argues initially that the appellant has abandoned, by not raising on appeal,
certain CUE claims – including hypothyroidism as a chronic disease, failure to rate skin and heart
conditions, failure to consider a medical record from May 1975, and failure to provide an
examination. Br. at 2. The Secretary asserts that the Court should affirm the August 2001 BVA
decision because that decision properly concluded that (1) the June 1976 RO decision did not contain
CUE, (2) the appellant's hyperthyroidism preexisted service, (3) the presumption of soundness did
not apply because the appellant was not a "veteran", and (4) the June 1976 decision's denial of
service connection for hypothyroidism was not an "undebatable" error, and that, therefore, the
Board's decision was not "arbitrary, capricious, an abuse of discretion or otherwise not in accordance
with law". Br. at 6,10. As to the appellant's alternative argument, the Secretary argues that the
Board provided an adequate statement of reasons or bases. Ibid.
The Secretary also contends (1) that the Board reviewed the evidence before the RO at the
time of its June 1976 decision, including the appellant's SMRs, a May 1976 VA examination report,
and the appellant's description of his symptoms as set forth in the August 1975 discharge summary
(Br. at 7); and (2) that, despite the Court's holding in its November 2000 decision regarding lay
observations as unable to establish symptoms, at the time of the June 1976 RO decision, "there was
no law precluding the RO from using [the a]ppellant's statements to find that his condition preexisted
service" (Br. at 8). The Secretary asserts that the RO in June 1976 "had ample, and allowable
evidence to support its determination that [the a]ppellant's thyroid condition preexisted service", and
that the appellant's argument that the RO erred by considering his statements in concluding that he

10
had preexisting hyperthyroidism cannot be the basis of CUE because it is a disagreement about
weighing the evidence. Br. at 8-9
The Secretary further contends that none of the evidence before the RO in June 1976
"indicated that [the a]ppellant's hyperthyroidism was incurred in or aggravated by service"; the
Secretary notes that medical records made after the appellant was treated for hyperthyroidism do not
address that condition and that the appellant's separation examination report described his
hyperthyroidism as "'controlled'" while stating that he had hypothyroidism. Br. at 9. Regarding
§ 3.306(b)(1), the Secretary contends that hyperthyroidism existed preservice and became
"controlled" with I-131 treatment, and that the November 1975 SMR showed that the appellant was
"hypothyroid as suspected", all of which supports the "usual effects" of use of I-131. Br. at 11. As
to the appellant's argument that his statement concerning his preservice symptoms cannot be used
to show that he had hyperthyroidism prior to service, the Secretary points out that there is no signed
statement by the appellant against his interest and that under Harris v. West, 203 F.3d 1347, 1351
(Fed. Cir. 2000), statements from an appellant can serve as medical evidence. Br. at 13. As to the
appellant's argument that the 1976 RO erred by denying service connection for hypothyroidism based
on preservice hyperthyroidism, the Secretary asserts that it is "debatable" because the record in
June 1976 showed that I-131 hyperthyroidism treatment led to hypothyroidism and the RO decision
discussed a "hyperactive thyroid condition with residuals of nuclear radiation". Br. at 15. Finally,
the Secretary argues against a remand on reasons-or-bases grounds because the Board's decision was
"complete and articulate with regard to each of its findings". Br. at 15-16.
In his reply brief, the appellant essentially reiterates the arguments made in his principal brief.
In answer to a question from the Court during oral argument on January 15, 2004, the Secretary filed
a response stating that in 1975 hypothyroidism in remission warranted a zero-percent rating; he cites
to 38 C.F.R. § 4.119, DC 7903 (1975).

III. Analysis
As an initial matter, the Court notes that the appellant did not raise in his brief the previously
submitted CUE claims regarding hypothyroidism as a chronic disease, failure to rate skin and heart
conditions, failure to consider a medical record from May 1975, and failure to provide an

11
examination. Therefore, the Court considers these arguments abandoned on appeal. See Green
(Doris) v. Brown, 10 Vet.App. 111, 114 (1997). The Court also notes that, although the Board
discusses the application of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-
475, 114 Stat. 2096 (R. at 3-4), the VCAA does not apply to CUE claims. See Livesay v. Principi,
15 Vet.App. 165 (2001) (en banc).
Although the appellant submitted an NOD as to the June 17, 1976, RO decision, he did not
submit a Substantive Appeal after receiving the July 1976 SOC; we will therefore assume, arguendo
(but see the discussion at the end of the Analysis regarding the adequacy of that SOC), for the purpose
of the CUE claim on appeal, that the June 1976 RO decision became a final decision. See 38 U.S.C.
§ 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1975); Cuevas v. Principi, 3 Vet.App. 542,
546 (1992). Such a final decision is a prerequisite for a CUE collateral attack. See Norris (Robert)
v. West, 12 Vet. App. 413, 422 (holding that prior RO decision that had not become final was not
subject to CUE collateral attack). An RO decision that has become final generally may not be
reversed or amended in the absence of CUE. See 38 U.S.C. § 5109A (codifying into law VA
regulation 38 C.F.R. § 3.105(a), infra); 38 C.F.R. § 3.105(a) (2000); see also 38 U.S.C. §§ 5108,
7105(c); cf. 38 C.F.R. § 3.400(q)(2) (2000) (providing that when previously disallowed claim is
reopened and allowed on basis of new and material evidence in form of service department records,
effective date is date such disallowed claim was filed). Section 3.105(a) of title 38, Code of Federal
Regulations, provides:
Where evidence establishes [CUE], the prior decision will be reversed
or amended. For the purpose of authorizing benefits, the rating or
other adjudicative decision which constitutes a reversal of a prior
decision on the grounds of [CUE] has the same effect as if the
corrected decision had been made on the date of the reversed decision.

38 C.F.R. § 3.105(a). The CUE claim presented here is a collateral attack on a final RO decision.
See Crippen v. Brown, 9 Vet.App. 412, 418 (1996); see also Fugo v. Brown, 6 Vet.App. 40, 44
(1993).
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

12
 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 at the time it was made.

Russell, 3 Vet.App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed.
Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell, supra).
"A determination that there was a '[CUE]' must be based on the record and the law that existed at the
time of the prior . . . decision." Russell, 3 Vet.App. at 314. "In order for there to be a valid claim of
[CUE], . . . [t]he claimant, in short, must assert more than a disagreement as to how the facts were
weighed or evaluated." Id. at 313; see also Damrel v. Brown, 6 Vet.App. 242, 245 (1994). Moreover,
a CUE claim must identify the alleged error(s) with "some degree of specificity". Crippen,
9 Vet.App. at 420; Fugo, 6 Vet.App. at 44 ("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").
Russell also established that, as a threshold matter, a CUE claim cannot be raised for the first
time before this Court but that the claim must have been the subject of a final prior BVA adjudication.
Russell, 3 Vet.App. at 314-15. Furthermore, when the Court considers a Board determination that
there was no CUE in a prior final RO decision, the Court's review is limited to deciding whether that
Board conclusion is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law", 38 U.S.C. § 7261(a)(3)(A); see Dobbin v. Principi, 15 Vet.App. 323 (2001) (discussing arbitrary
and capricious standard as applied to CUE claims); Damrel, supra, and whether it is supported by an
adequate statement of "reasons or bases", 38 U.S.C. § 7104(d)(1). See Beyrle v. Brown, 9 Vet.App.
377, 382 (1996); see also Russell, 3 Vet.App. at 315; Eddy v. Brown, 9 Vet.App. 52, 57 (1996). The
Board's written statement of reasons or bases must address its findings and conclusions on all material
issues of fact and law presented on the record and must be adequate to enable an appellant to
understand the precise basis for the Board's decision, as well as to facilitate review in this Court. See
Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
In its decision, the Board, in essence, conceded one of the errors asserted by the appellant as
to the 1976 RO decision but found that the 1976 RO decision could have had another, unstated basis

13
for not awarding service connection for hypothyroidism (R. at 257, 259). That basis was the
application of the "usual effects" clause in 38 C.F.R. § 3.306(b)(1), which provided in 1976 as to
aggravation of a preexisting condition:
(1) The usual effects of medical and surgical treatment in
service, having the effect of ameliorating diseases or other conditions
incurred before enlistment, including postoperative scars, absent or
poorly functioning parts or organs, will not be considered service
connected unless the disease or injury is aggravated by service.

38 C.F.R. § 3.306(b)(1) (1975).

Specifically, the Board reasoned:

In denying service connection for hypothyroidism, the RO appeared to
rely on the facts pertaining to hyperthyroidism and its existence prior
to service. It's [sic] findings revolved around a discussion of the
pre[]service symptoms of hyperthyroidism. The RO went on to use its
findings that the "thyroid condition" or hyperthyroidism preexisted and
was not aggravated by service to justify its denial of hypothyroidism.

The above rationale, viewed in a vacuum, could potentially be viewed
as error, insofar as the RO appeared to rely on the finding that one
disorder (hyperthyroidism) preexisted service in order to deny service
connection for another separate disorder, hypothyroidism, and
implicitly conclude that it too preexisted service. The Board agrees
that such a determination would be erroneous.

However, it is debatable as to whether this was in fact the basis of the
RO's denial of service connection of hypothyroidism in light of the
evidence and regulations of record which indicate another possible
valid basis of the RO's denial. Russell, supra. That is, the evidence
and regulations of record, read in conjunction with the rationale of the
June 1976 decision, leaves it open to debate as to whether the RO,
rather than finding that hypothyroidism preexisted service, treated the
disability as a "usual effect" of treatment of the claimed hyperactive
thyroid condition.

First, the issue in the June 1976 rating decision was service connection
for a "hyperactive thyroid condition with residuals of nuclear
radiation." (emphasis added).

14
Second, [SMR]s consistently documented that hypothyroidism was
secondary to I-131 treatment for hyperthyroidism.

Third, [SMR]s document that the veteran's hyperthyroidism resolved
with treatment.

Fourth, extant regulations provided that the usual effects of medical
and surgical treatment in service, having the effect of ameliorating
disease or other conditions incurred before enlistment, including
postoperative scars, absent or poorly functioning parts or organs, will
not be considered service connected unless the disease or injury is
otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1) (1975)
(emphasis added).

The above demonstrates that it is debatable as to whether the RO
based its denial on the erroneous determination that hypothyroidism
preexisted service, or that the RO committed error in denying service
connection for hypothyroidism based on its finding that
hyperthyroidism preexisted and was not aggravated by service (i.e.,
that there is no rational connection between the determination that
hyperthyroidism preexisted service and the denial of hypothyroidism).

It is debatable because it could be argued, based on the above-listed
evidence, that the RO decision was based on a finding that the
veteran's hyperthyroidism preexisted and was not aggravated by
service, and that service connection for hypothyroidism was denied
based on that fact that it was a "usual effect" of the treatment of
hyperthyroidism (pursuant to section 3.306(b)(1)), rather than a
preexisting disease that was not aggravated by service.

This interpretation of the RO's determination is supported by its
framing of the issue as being service connection for a hyperactive
thyroid condition with residuals of nuclear radiation, and by its
determination that the thyroid condition, as opposed to the residuals
of nuclear radiation (which the [SMR]s have noted as being
hypothyroidism), preexisted service.

Further, such a rationale is not without support in the available
evidence of record. In this regard, the Board notes that following
treatment for hypothyroidism, the [appellant] had been found to be
hypothyroid, "as suspected." Further, [SMR]s specifically document
on multiple occasions that hypothyroidism was secondary to I-131
treatment of hyperthyroidism.

15
 In sum, the Board finds that the veteran's claim that the RO
erroneously relied on the determination that hyperthyroidism
preexisted service to deny service connection to hypothyroidism does
not constitute CUE.

This is because the evidence indicates, at the very least, the possibility
that the RO only found the veteran's hyperthyroidism, not
hypothyroidism, preexisted and was not aggravated by service.
Further, pursuant to the extant regulation, section 3.306(b)(1), the RO
could arguably have denied service connection for hypothyroidism
because it was a usual effect of the treatment for the preexisting
thyroid condition that was not aggravated by service.

Thus, the Board finds that the RO's June 1976 . . . decision leaves open
for the debate as to whether its denial of service connection for
hypothyroidism based on a determination that hyperthyroidism
preexisted service was CUE. Therefore, this theory of CUE must fail
because the alleged error is debatable. Russell, supra.

The Board stresses that it is not making its own finding or conclusion
that hypothyroidism was or was not a usual effect of treatment for
hyperthyroidism, or that the evidence otherwise demonstrated that it
preexisted service. This would be impermissible. Colvin [,1 Vet.App.
at 175]. The Board merely finds that the evidence (including
competent evidence) supports another interpretation of the RO's
denial that would not be erroneous, i.e., be justified by the
regulations. As a result, the veteran's alleged error is debatable.

R. 24-27 (boldface italic emphasis added). The foregoing emphasized language shows that the Board
found that the RO might actually have based its 1976 denial on § 3.306(b)(1).
First, we must accept that the Board's finding that except for the possibility of the application
of the § 3.306(b)(1) "usual effects" clause the RO would have erred in "rely[ing] on the finding that
one disorder (hyperthyroidism) preexisted service in order to deny service connection for another
separate disorder, hypothyroidism, and implicitly conclud[ing] that it too preexisted service."
R. at 25. This Court cannot controvert findings made by the Board that are not adverse to the
appellant. See 38 U.S.C. § 7261(a)(4) (as amended by theVeterans Benefits Act of 2002 Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832 (Dec. 6, 2002) (providing for Court to reverse or set aside only
findings of fact "adverse to the claimant")); Roberson v. Principi, 17 Vet. App. 135, 138 (2003) (per

16
curiam order); see also Nolen v. Gober, 222 F.3d 1356, 1360-1361 (Fed. Cir. 2000) (holding that once
Secretary determined that claim was well grounded it was improper for this Court to reconsider
matter). Moreover, we hold that the conceded RO error (using the preexistence of hyperthyroidism
to deny service connection for hypothyroidism) had it not been committed, and in the absence of a
viable application of the § 3.303(b)(1) "usual effects" theory, would have resulted in a changed
outcome – that is, service connection for hypothyroidism would have been awarded because there was
no evidence as of 1976 that that condition had preexisted the appellant's service. See Russell, supra;
see also Crippen, Damrel, and Fugo, all supra. Indeed, this was one of the holdings in the Court's
November 30, 2000, decision, Hines I, 2000 WL 1771071, at *4, and that determination is the law
of the case. See Augustine v. Principi, 343 F.3d 1334, 1339 (Fed. Cir. 2003) (law-of-the-case doctrine
applies to legal issue on question [that] has actually been decided "in earlier stage of the litigation"
on which "final judgment" has been entered); Intergraph v. Intel, 253 F.3d 695, 699 (Fed. Cir. 2001)
(under law-of-the-case doctrine, court of appeals is generally "bound by findings" "made by court of
appeals in a prior appeal of the same case") (quoting Ellard v. Ala. Bd. of Pardons and Paroles, 928
F.3d 378, 381 (11th Cir. 1991)).
Before proceeding further we reject the appellant's argument that if the RO and the Board had
properly applied 38 C.F.R. § 3.304(b)(3) (1975), regarding veterans' signed statements that contradict
the presumption of soundness, then the "usual effects" argument would never have to be reached.
Basic entitlement to compensation for veterans for service-connected disabilities in 1976 derived
from 38 U.S.C. § 310 (now § 1110), which provided in pertinent part:
For disability resulting from personal injury suffered or disease
contracted in line of duty, or for aggravation of a preexisting injury
suffered or disease contracted in line of duty, in the active military,
naval, or air service . . . the United States will pay to any veteran thus
disabled . . . compensation as provided in this subchapter . . . .

38 U.S.C. § 310 (1970) (emphasis added). The term "veteran" was defined, in relevant part, as "a
person who served in the active military, naval, or air service." 38 U.S.C. § 101(2); see also
38 C.F.R. § 3.1(d) (1975). The term "active military, naval, or air service" was defined to include,
inter alia, "any period of active duty for training during which the individual concerned was disabled
or died from a disease or injury incurred or aggravated in line of duty." 38 U.S.C. § 101(24)

17
(emphasis added); see also 38 C.F.R. § 3.6(a) (1975). An individual who has served only on active
duty for training must establish a service-connected disability in order to achieve veteran status. See
Paulson v. Brown, 7 Vet.App. 466, 470 (1995); see also Mercado-Martinez v. West, 11 Vet.App. 415,
419 (1998). Under 38 U.S.C. § 311 (now § 1111), a veteran was afforded a presumption of sound
condition upon entry into service, except for any defects noted at the time of examination for entry
into service. In this case, the appellant was not a "veteran" at the time of the RO's adjudication in
1976 because his service was active duty for training and he had not established a service-connected
disability in order to achieve veteran status. See Paulson and Mercado-Martinez, both supra. The
presumption of soundness thus did not attach, and any assertion that the 1976 RO failed to apply it
cannot constitute CUE.
We thus return to the Board's hypothesis that the RO decision denying service connection for
hypothyroidism could reasonably be interpreted as having been based on a proper application of the
"usual effects" clause in § 3.306(b)(1) in 1976. The Board apparently concluded that the 1976 RO
could properly have found that the usual effects, that is, hypothyroidism, of the in-service surgical
treatment of the appellant's hyperthyroidism, which treatment had the effect of improving the disease
that was incurred before service, should not be considered service connected because the disease was
not "otherwise aggravated by service". R. at 26. There are several problems with this analysis. First,
although the Board noted that, following treatment for hyperthyroidism, the appellant's SMRs
documented that he had been found to be hypothyroid, "as suspected," and that the hypothyroidism
was secondary to I-131 treatment of hyperthyroidism, there does not appear to have been medical
evidence in the record in June 1976 that indicated that the "usual effects" of hyperthyroidism
treatment was hypothyroidism. There was medical evidence that the appellant's hypothyroidism was
secondary to the I-131 treatment, but that does not indicate that it was a "usual effect[]". In any event,
the 1976 RO decision made no such finding.
Second, even if we accept that hypothyroidism is a usual effect of hyperthyroidism treatment,
service connection can still be granted if the condition is "otherwise aggravated by service".
38 C.F.R. § 3.306(b)(1). In this case, it is undisputed on the June 1976 record that the appellant's
thyroid condition was aggravated by service. Although the radiation treatment eliminated his
hyperthyroid condition, and it is now established that that treatment probably led to another condition,

18
hypothyroidism, another disability (see R. at 668-69 (Dr. Siperstein's January 1996 report)), there was
absolutely no evidence in June 1976 that the appellant had hypothyroidism prior to service and that
it was not incurred in service. Hence, the only basis for concluding that hypothyroidism was not
service connected would be because it was a § 3.306(b)(1) "ususal effect[]" of the radiation treatment.
However, as noted, that provision specifically excepts from its preclusion of service connection "a
disease or injury otherwise aggravated by service". 38 C.F.R. § 3.306(b)(1) (1975).
This brings us to the Board's discussion of the hypothetical application of § 3.306(b)(1) by the
RO. We hold that that Board discussion is deficient because it does not explain how that regulation
would apply to the facts before the RO in June 1976. Many pertinent questions about the potential
application of that regulation to the June 1976 evidence of record were not adequately addressed by
the Board. For example, in the words of the regulation, the "medical treatment in service" was for
hyperthyroidism. The "usual effect[]" in the Board's hypothesis would be hypothyroidism. Assuming
that there was of record in June 1976 medical evidence on which to base such a "usual effects"
determination, how would the last part of the regulation, "unless the disease or injury is otherwise
aggravated by service", be applied to the June 1976 evidence of record? First, what is the meaning
of "aggravated" in the "unless" clause? Second, at what point in time must the aggravation have
occurred – at the time of the treatment, following the treatment, or at separation – and why? Third,
to what "disease" does the "unless" clause refer? It is quite unclear whether it is the condition sought
to be "ameliorated", hyperthyroidism, or the condition that was considered to be the "usual effect[]",
hypothyroidism. If the former, then it is clear from the evidence that the appellant's hyperthyroidism
had been aggravated by service by the time that his June 1975 treatment began and it further appears,
based on his 51-day period of in-service hospitalization in June through August 1975 (R. at 56-58),
for example, that this may not have been a temporary flareup but rather an increase in the severity of
his disease that would have continued without the I-131 treatment then administered. See Hunt v.
Derwinski, 1 Vet.App. 292, 296 (1991) (noting that presumption of aggravation is not applicable
unless preservice disability underwent increase in severity during service).
On the other hand, if the "disease" referred to in the § 3.306(b)(1) "unless" clause is
hypothyroidism, then the Board needs to address how it would have been reasonable for the RO to
decide that hypothyroidism was not aggravated by service – in view of the fact that in 1996 the RO

19
determined, based on essentially the same evidentiary record that was before the RO in 1976
regarding aggravation of preexisting hypothyroidism, that hypothyroidism "was aggravated by
service" (R. at 263). Further, as to the interpretation of "disease or injury" in the "unless" clause, the
Board must (1) address which interpretation is the correct one (including whether "disease" can fairly
be read in the alternative, that is, to refer to aggravation of either the condition being treated or the
resulting condition, i.e., "the usual effects"), construing interpretive doubt in favor of the claimant,
see Brown v. Gardner, 513 U.S. 115, 118 (1994); Allen (Alfred) v. Brown, 7 Vet.App. 439, 446
(1995) (en banc); and (2) provide adequate reasons for its interpretive conclusion by referring to
regulatory history, any opinions of the VA General Counsel, and any policy considerations that the
Secretary may have sought to achieve by the promulgation of § 3.306(b)(1). Because the Board failed
to address these matters, its statement of reasons or bases for denying the CUE claim was inadequate
and remand is required. See 38 U.S.C. §7104(d)(1); Beyrle, supra; see also Russell, Eddy, and
Allday, all supra.
There is a further and perhaps more fundamental deficiency in the Board's hypothesizing about
the RO's having applied § 3.303(b)(1) in 1976, and that is that the evidence of record strongly
suggests that the RO did not apply that regulation in 1976. The evidence so suggesting is the content
of the 1976 and 1983 SOCs. After the appellant filed an NOD in 1976, the RO issued an SOC, which
was then, as now, required to specify the relevant regulations, see 38 U.S.C. § 4005(d)(1) (1970)
(requiring that agency of original jurisdiction "prepare [an SOC] consisting of . . . [, inter alia,] (A)
[a] summary of the evidence in the case pertinent to the issue or issues with which the disagreement
has been expressed; [and] (B) [a] citation or discussion of the pertinent law [and] regulations"); 38
C.F.R. § 19.115(b) (1975) (providing that SOC "shall consist of . . .[, inter alia, a] citation or
discussion of the pertinent law, [VA r]egulations or other criteria"); that 1976 SOC did not refer to,
discuss, or summarize in any way § 3.306(b)(1) (see R. at 264-66). In contrast, the 1983 SOC
denying the appellant's claim to reopen did specifically refer to § 3.306(b)(1) and specifically
summarized the "usual effects" prohibition (R. at 310). Hence, it appears either that the 1976 RO did
not, in fact, apply § 3.306(b)(1) or that, if it did, then its SOC is deficient and the June 1976 RO
decision might not have become final, given the appellant's timely NOD as to that decision (R. at
261). See Fenderson v. West, 12 Vet.App. 119, 132 (1999) (applying Holland v. Gober, 10 Vet.App.

20
433, 436 (1999) (per curiam order)). The Board's failure to address these matters in connection with
its hypothesis about the application of §3.306(b)(1) by the RO in June 1976 is an additional reasons-
or-bases deficiency requiring remand under section 7104(d)(1). See Beyrle, supra; see also Russell,
Eddy, and Allday, all supra.
Accordingly, the Court will set aside the Board's decision that it is a reasonable interpretation
of the 1976 RO decision that it was based – and could properly have been based – on an application
of § 3.306(b)(1). If the Board decides, consistent with the foregoing analysis, that the RO either did
not base or could not properly have based its decision in 1976 on an application of § 3.306(b)(1), then
the Board must find that that RO decision contained CUE in not awarding service connection for the
appellant's hypothyroidism. In that event, the Board must itself, or by remand to an RO, then
determine the proper rating for the hypothyroidism at the time of the June 1976 RO decision and
subsequently, until the award of service connection in February 1996 (R. at 671-75). Such a
determination must take into account the possibility of staged ratings within that 20-year period, see
Fenderson, 12 Vet.App. at 126, and provide the appellant with all appropriate assistance in
developing evidence on the rating question. See 38 U.S.C. §5103A; 38 C.F.R. § 3.159(c) (2003);
Proscelle v. Derwinski, 2 Vet.App. 629, 631 (1992) (concluding that duty to assist applied to veteran
seeking higher rating for service-connected disability). Alternatively, if the Board concludes that such
an application did occur and would have been proper, the Board must determine, and explain its
decision fully, whether the 1976 RO decision is final (as to the effective date assigned to the award
of service connection for the appellant's hypothyroidism).
As to the appellant's other contentions, the Court has considered them and does not find that
they warrant further review at this time. If appropriate, the appellant is free to raise any such
arguments in the remand ordered herein. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam
order) (establishing that because of yet-unknown factual and legal context in which claim
readjudication will occur, absent "appropriate circumstances" Court will often exercise its discretion
not to address each asserted BVA error once it is determined that VCAA remand is warranted; narrow
decision preserves opportunity to argue claimed errors before Board at readjudication and before
Court on appeal should Board rule adversely). The appellant is, of course, free to pursue these
matters on remand. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) ("[o]n remand the appellant

21
is free to proffer his arguments to the Board, and the Board must address them"); Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991) (noting that "[t]he Court expects that the BVA will reexamine
the evidence of record, seek any other evidence [that] the Board feels is necessary, and issue a timely,
well-supported decision in this case").
Finally, regarding our colleague's dissenting opinion, we appreciate his effort to supply an
adequate statement of reasons or bases for the Board's decision. This, however, is the Board's
responsibility, see 38 U.S.C. § 7104(d); Beryle, supra; see also Russell and Eddy, both supra, not the
Court's. Nor do we know the basis for many of the implicit assumptions that seem to be made in the
dissenting opinion about the proper interpretation of the § 3.306 regulation.

IV. Conclusion
Upon consideration of the foregoing analysis, the record on appeal, and the submissions of
the parties, the Court vacates the August 24, 2001, BVA decision and remands the matter for
expeditious issuance of a readjudicated decision supported by an adequate statement of reasons or
bases, see 38 U.S.C. §§ 1110, 5109A, 7104(a), (d)(1); 38 U.S.C. § 4005 (d)(1) (1970); 38 C.F.R.
§§ 3.105(a), 3.306(b)(1), 4.119; 38 C.F.R. § 19.115(b) (1975); Fletcher, supra – all consistent with
this decision and in accordance with section 302 of the Veterans' Benefits Improvements Act, Pub.
L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring
Secretary to provide for "expeditious treatment" for claims remanded by BVA or the Court). See
Allday, 7 Vet.App. at 533-34. On remand, the appellant will be free to submit additional evidence
(as appropriate in a CUE claim) and argument on the remanded claim, and the Board is required to
consider any such evidence and argument. See Kay, supra. The Court notes that a remand by this
Court and by the Board confers on an appellant the right to VA compliance with the terms of the
remand order and imposes on the Secretary a concomitant duty to ensure compliance with those
terms. See Stegall v. West, 11 Vet.App. 268, 271 (1998). A final decision by the Board following
the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this
Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the

22
date on which notice of the new Board final decision is mailed to the appellant. See Marsh v. West,
11 Vet.App. 468, 472 (1998).
VACATED AND REMANDED.

KRAMER, Chief Judge, dissenting: Because, for the reasons set forth below, I disagree with
the majority's analysis and conclusion that a remand is proper in this clear and unmistakable error
(CUE) case, I respectfully dissent.
A prior VA regional office (RO) decision must be reversed or revised where evidence
establishes CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a) (2003). For CUE to exist either (1) the
correct facts in the record were not before the adjudicator or (2) the statutory or regulatory provisions
extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet.App. 242, 245 (1994). In
addition, "the error must be 'undebatable' and of the sort 'which, had it not been made, would have
manifestly changed the outcome at the time it was made.'" Damrel, 6 Vet.App. at 245 (quoting
Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc)); see also Bustos v. West, 179 F.3d 1378,
1380 (Fed. Cir. 1999) (expressly adopting "manifestly changed the outcome" language in Russell,
supra). "In order for there to be a valid claim of [CUE], . . . [t]he claimant, in short, must assert more
than a disagreement as to how the facts were weighed or evaluated." Russell, 3 Vet.App. at 313. That
is because, "even where the premise of error is accepted, if it is not absolutely clear that a different
result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable."
Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993). On appeal of a Board of Veterans' Appeals (Board or
BVA) determination that there was no CUE in a prior final RO decision, the Court's review is limited
to determining whether the Board's conclusion is "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law" (38 U.S.C. § 7261(a)(3)(A)) and whether it is supported by an
adequate statement of "reasons or bases" (38 U.S.C. § 7104(d)(1)). See Eddy v. Brown, 9 Vet.App.
52, 57 (1996); Damrel, 6 Vet.App. at 246; Russell, 3 Vet.App. at 315; see also Beyrle v. Brown,
9 Vet.App. 377, 381-84 (1996); Mason v. Brown, 8 Vet.App. 44, 52-53 (1995).
In the instant CUE case, based on the evidence of record in June 1976, the appellant has failed
to demonstrate that there could have been CUE in the June 1976 RO decision to deny service
connection for hyperthyroidism or hypothyroidism. See Link v. West, 12 Vet.App. 39, 45 (1998);

23
Crippen v. Brown, 9 Vet.App. 412, 420 (1996) (noting that 38 U.S.C. § 5104(b) was added effective
February 1, 1990, to require RO to specify in decision evidence considered and reasons for
disposition).
First, there was evidence of record in June 1976 to support the RO's determination that the
appellant's hyperthyroidism existed prior to service. See Record (R.) at 259 (June 1976 RO decision
in which RO had concluded that thyroid condition, inter alia, preexisted service). Specifically, in the
August 1975 hospital discharge summary, the physician had stated that the "[then-p]resent [i]llness"
(R. at 57) had begun one year prior to the appellant's June 1975 hospital admission, i.e.,
approximately 11 months prior to the appellant's entry into service (see R. at 33). See Crippen, supra;
Fugo, 6 Vet.App. at 43-44 ("[I]f it is not absolutely clear that a different result would have ensued,
the error complained of cannot be, ipso facto, clear and unmistakable."); Russell, 3 Vet.App. at
313-14 (as to requirements of undebatable error and manifest outcome change). Moreover, at the
time of the June 1976 RO decision, the RO was not precluded from using its own medical judgment
in making its determination, and the Court notes that a medical doctor, inter alia, signed the June 1976
RO decision. See R. at 259; see also Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (to reject
expert medical conclusions, Board must have basis other than its own unsubstantiated opinion to
support its decision); Berger v. Brown, 10 Vet.App. 166, 170 (1997) ("opinions from this Court that
formulate new interpretations of the law subsequent to an RO decision cannot be the basis of a valid
CUE claim").
Second, under 38 C.F.R. § 3.306(a) as extant in June 1976, a preexisting injury or disease
could have been service connected if "there [was] an increase in disability during such service."
38 C.F.R. § 3.306(a) (1975). As to any increase in the appellant's hyperthyroidism, it is not entirely
clear from the language of § 3.306(a) (see Damrel, 6 Vet.App. at 245 (error must be undebatable))
whether "during such service" meant "must have endured until discharge from service" or "at any
point in time during service." Although perhaps not determinative on this issue because it was not
in existence at the time of the June 1976 RO decision, this Court's caselaw, at a minimum, is
instructive as to any ambiguity that may have existed on this issue. See Hunt v. Derwinski,
1 Vet.App. 292, 296-97 (1991) (temporary flare-ups during service of preexisting disease are not
sufficient to be considered in-service aggravation unless underlying condition, as contrasted with

24
symptoms, is worsened); R. at 259 (June 1976 RO had concluded that appellant's thyroid condition,
inter alia, "was not aggravated [by service], but actually improved in service with treatment"). If
establishing an increase in disability under § 3.306(a) required that the disability endure until
discharge from service, there was evidence of record in June 1976 to support a determination that the
appellant's hyperthyroidism had not so endured. See R. at 200 (February 1976 service discharge
examination report on which examiner had indicated, inter alia, that hyperthyroidism was
"controlled"); Fugo and Russell, both supra. Even assuming that, at the time of the June 1976 RO
decision, showing an increase in disability under § 3.306(a) did not require that the disability endure
until discharge from service, the evidence of record in June 1976 was not necessarily all in the
appellant's favor as to whether a nonenduring increase had occurred. See R. at 138, 142, 166, 169
(treatment notes during appellant's in-service hospitalization indicating that appellant was out of
hospital on passes of varying lengths, including pass for overnight fishing trip), 173 (discharged from
hospital to duty); Crippen, 9 Vet.App. at 422 (if all evidence at time of RO decision "militated in
support of the claim," that could be basis for finding CUE in RO's denial of claim); see also Fugo and
Russell, both supra.
Third, as to whether the existence of hypothyroidism either was an aggravation of the
appellant's hyperthyroidism or itself was incurred in service, 38 C.F.R. § 3.306(b)(1) as extant in June
1976 provided:
The usual effects of medical and surgical treatment in service, having
the effect of ameliorating disease or other conditions incurred before
enlistment, including postoperative scars, absent or poorly functioning
parts or organs, will not be considered service connected unless the
disease or injury is otherwise aggravated by service.
38 C.F.R. § 3.306(b)(1) (1975).
In this regard, three pieces of evidence before the June 1976 RO could have been construed
as indicating that the development of hypothyroidism was a "usual effect[]" (38 C.F.R. § 3.306(b)(1))
of the treatment of the appellant's hyperthyroidism. See Fugo and Russell, both supra. Specifically,
of record in June 1976 were, inter alia, the August 1975 in-service hospital discharge summary in
which the examiner had "recommended that [the appellant] be observed for signs of decreasing
thyroid activity" (R. at 58); a service medical record (SMR) in which the examiner had indicated that

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the appellant's hypothyroidism was secondary to his in-service I-131 treatment (R. at 185; see R. at
194 (same effect)); and an SMR in which the examiner had recorded that the appellant's
hypothyroidism was "as suspected" (R. at 186). See Crippen, 9 Vet.App. at 422; see also Russell,
3 Vet.App. at 313 (disagreement with manner in which evidence was weighed is not CUE).
Lastly, other than the evidence described above, there was no other evidence of record in June
1976 to demonstrate that the appellant's hyperthyroidism had been "otherwise aggravated" (38 C.F.R.
§ 3.306(b)(1)), and the appellant has not presented any authority as to the meaning of that term. See
R. at 58, 138, 142, 166, 169, 173, 185, 186, 194, 200; Crippen, Fugo, and Russell, all supra.
Thus, the Court should conclude that the appellant has not demonstrated that the Board's
determination, in the decision on appeal, that there was no CUE in the June 1976 RO decision in
which the RO had denied service connection for the appellant's thyroid condition was "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." 38 U.S.C.
§ 7261(a)(3)(A); see Russell, 3 Vet.App. at 315. Further, given that the appellant has not shown,
based on the evidence of record in June 1976, that there could have been CUE in the June 1976 RO
decision, any inadequacy in the BVA's statement of reasons or bases for its decision as to this CUE
matter would be nonprejudicial because no such CUE claim could have been granted on any of the
bases that the appellant has advanced. See Eddy, 9 Vet.App. at 58-59 (concluding that "any
inadequacy in the Board's statement of . . . reasons or bases for its decision on [the appellant's CUE]
claim would be nonprejudicial error because a CUE claim could not have been granted on any of the
theories advanced by the appellant"); see also Link, supra. Finally, as to the interpretive questions
regarding 38 C.F.R. § 3.306(b)(1) as extant in June 1976 that the majority has identified (ante at
19-20), I would note that, if it is unclear whether an interpretation, which would form the basis for
CUE, was correct in 1976, such an interpretation cannot be relied upon to demonstrate CUE. See
Berger, 10 Vet.App. at 170. Accordingly, the Court should affirm the August 2001 Board decision.

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