This version includes the errata dated 13May05-e
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 03-59
THOMAS G. JOYCE , APPELLANT ,
V.
R. JAMES NICHOLSON ,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued October 6, 2004 Decided March 22, 2005 )
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Ralph G. Stiehm, with whom Tim S. McClain, General Counsel; R. Randall Campbell,
Assistant General Counsel; Richard Mayerick, Acting Deputy Assistant General Counsel; and Kathy
A. Banfield, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief, for the
appellee.
Before STEINBERG, GREENE, and HAGEL, Judges.
STEINBERG, Judge, filed the opinion of the Court. HAGEL, Judge, filed a concurring
opinion.
STEINBERG, Judge: The appellant, veteran Thomas G. Joyce, through counsel, seeks
review of a September 25, 2002, Board of Veterans' Appeals (Board or BVA) decision that, inter
alia, concluded that November 1955, April 1960, and February 1963 Veterans' Administration (now
Department of Veterans Affairs (VA)) regional office (RO) decisions, each of which had denied an
award of VA service connection for a duodenal ulcer, did not contain clear and unmistakable error
(CUE). Record (R.) at 1-21. The parties each filed briefs, and the appellant filed a reply brief.
Thereafter, the Court ordered additional briefing from the parties, both parties filed responses, and
the Court then heard oral argument in the case. The Court notes that counsel for the appellant stated
at oral argument that, on appeal, the appellant was withdrawing his arguments, as set forth in his
brief (Appellant's (App.) Brief (Br.) at 6-12), that the April 1960 and February 1963 RO decisions
were the product of CUE; therefore, the Court will not address those arguments, nor will the Court
include the Board's analysis of those claims in this decision's factual-background discussion or
address the parties' arguments with regard to those claims in this decision's discussion of the parties'
contentions on appeal. For the reasons set forth below, the Court will affirm in part, reverse in part,
and vacate in part the September 2002 BVA decision and remand the matter for further adjudication.
I. Relevant Background
Veteran Thomas G. Joyce served honorably on active duty in the U.S. Army from December
7, 1953, until April 30, 1954, during the Korean Conflict. R. at 28. During his pre-enlistment
medical examination, he was found to be without conditions that would disqualify him for service.
R. at 30-31. At that time, his physical profile was recorded on the examination report, in box "P",
which then referred to "[p]hysical capacity or stamina", as a level "1", which then signified that the
examinee is "[a]ble to perform maximum sustained effort over extremely long periods", Paragraph
(Para.) 12, Army Regulation (AR) 40-115 (1948) (superseded by AR 40-503 (May 9, 1956)). R. at
31. On February 16, 1954, an examination of his upper-gastro-intestinal tract was conducted; at that
time, it was found that he had "a pronounced cloverleaf deformity of the duodenal bulb probably due
to ulcer niche . . . not seen in the fluoroscopy because of marks [sic] spasms of the pylorus of the
stomach." R. at 50. The examination report also noted a "previous ulcer reported in civilian life,
about a year and [a] half ago." Ibid. A month later, the veteran underwent a physical examination.
In the "History of Present Illnesses" section of the examination report, it was noted that the veteran
had "had epigastric pain [and] vomiting for 4 or 5 years" and "for approx[imately] 1 year he ha[d]
noted small flecs of bright red blood in [his] vomitus." R. at 40. The report also indicated that a
workup at the University of Kansas (KU) Medical Center (MC) in May 1953 "revealed 'ulcers'".
Ibid.
On April 13, 1954, a re-examination of his upper-gastro-intestinal tract was conducted; that
examination report noted that his "duodenal deformity . . . has shown no essential change since the
previous examination of . . . Feb[ruary 19]54" and that, although "[t]here was no demonstrable ulcer
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niche at th[at] time, the previously reported pseudo[]diverticulum remain[ed]." R. at 51.
("Pseudodiverticulum", also referred to as "false diverticulum", is defined as "an intestinal
diverticulum due to the protrusion of the mucous membrane through a tear in the muscular coat."
"Diverticulum" is defined as "a circumscribed pouch or sac of variable size occurring normally or
created by herniation of the lining mucous membrane through a defect in the muscular coat of a
tubular organ." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1204 (28th ed. 1994).) An
April 1954 Army Medical Board (Medical Board) report (1) recorded a diagnosis of "ulcer duodenal
. . . not obstructed[,] EPTE [(existed prior to entrance into service)], not service aggravated";
(2) listed the veteran's physical disqualification as existing prior to entry of the current period of
military service; (3) noted that the physical disqualification "ha[d] not been aggravated by reason of
that military service" and that it "was not incurred during or aggravated by any prior period of
military service"; and (4) included a recommendation for separation from service. R. at 65. In the
examination summary attached to its report, the Medical Board found that the veteran was "poorly
motivated for the service and had marked increase in symptoms after being drafted." R. at 66
On April 30, 1954, the veteran was separated from active duty (R. at 28); his discharge
examination report stated that he had an "[u]lcer, duodenal . . . not obstructed" and had been
"[h]ospitalized at [the] US Army Station Hospital, Fort Riley, Kansas, from 22 March 1954 to
21 April 1954." R. 33-34. His physical profile was recorded on that report, in box "P", as a level
"4", which then indicated that the individual has one or more medical conditions or physical defects
of such severity that his/her physical capacity is "[b]elow [the] minimum standards for induction",
Para. 12, AR 40-115. R. at 34. On November 3, 1955, he filed with a VARO an application for
disability compensation (C&P application) for "ulcers - 1953 aggravated". R. at 76-79. On
November 30, 1955, the RO denied service connection for the veteran's duodenal ulcer on the ground
that it "was not service incurred or aggravated." Supplemental (Suppl.) R. at 1-2. In that decision,
the RO relied on the fact that "[t]he records reveal that the veteran gives the history of having
stomach trouble 4 or 5 years prior to his induction and in May 1953 he was found to have [an] ulcer."
Suppl. R. at 2.
In February 1993, the veteran attempted to reopen his previously and finally disallowed
service-connection claim. R at 136. In a February 1997 hearing-officer decision, the veteran was
3
awarded VA service connection for his duodenal ulcer on the basis that "this condition, which
existed prior to military service, permanently worsened as a result of service." R. at 416. In
April 1998, he filed a claim of CUE as to the November 1955 RO decision. R. at 546-50. The
Board in July 1998 determined, inter alia, that the 1955 RO decision did not contain CUE. R. at 564,
576-81. On appeal of that BVA decision to this Court, the veteran argued for reversal of the Board
decision as to his CUE claim because "[t]he record contained no evidence [that] supported a finding
that the veteran suffered from an ulcer at the time that he entered service. . . . [and] contained no
evidence of a 'specific finding' that the onset of the veteran's ulcer during service was due to the
natural progress of the disease." R. at 763. The Secretary conceded that a remand was warranted;
he asserted that the 1998 Board decision denying the CUE claim was in error because the Board had
considered evidence not properly before it in the context of a CUE claim and had failed to provide
an adequate statement of reasons or bases for its decision. R. at 695, 734-35. As to the latter
assertion of error, the Secretary specifically stated as to the 1998 Board decision:
[T]he Board did not adequately discuss whether the presumption of
aggravation applied and if so, how it was rebutted. . . . The Board's
determination with regard to whether evidence of record at the time
of the 1955 decision showed aggravation simply pointed to the
service department's finding that the condition was not aggravated.
The Board's reasons and bases with regard to aggravation were
deficient.
R. at 735 (citation omitted). In a single-judge order dated March 2001, the Court vacated the July
1998 BVA decision and ordered the Board to readjudicate the veteran's CUE claim "in accordance
with the parties' pleadings, which will be made part of the [veteran's] claims file on remand." R. at
688-89. In the September 25, 2002, BVA decision here on appeal, the Board again, inter alia,
concluded that the 1955 RO decision denying service connection for the veteran's duodenal ulcer did
not contain CUE. R. at 9-19. In reaching that conclusion, the Board first noted that the evidence
before the RO in 1955 consisted of (1) the veteran's service medical records (SMRs) (R. at 30-31,
33-75), (2) the Medical Board report (R. at 57-58, 63-66), (3) the veteran's 1955 C&P application
(R. at 76-79), and (4) the veteran's Form DD 214 (R. at 28), and then reasoned:
[I]t was the physicians themselves who determined that the veteran's
proper diagnosis was of a duodenal ulcer and that the ulcer had
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preexisted service and not been aggravated during service. Thus, the
RO was relying, in accordance with the governing regulation in effect
at the time, upon the judgment of medical professionals to establish
these medical facts. . . . [T]he Board is unable to discern the type of
undebatable error which the Court has held to constitute [CUE] so as
to warrant reversal of the RO's 1955 denial.
Having determined that the veteran's ulcer disease pre[]existed
service, the RO then correctly turned to the question whether the
pre[]existing ulcer disease had been aggravated during the veteran's
four months of service. . . . Although there was no specific finding
in the medical evidence of record in 1955 that the veteran's ulcer had
merely recurred[,] the Medical Board's report, which was of record
and was considered by the RO, contained the conclusion that the
veteran's ulcer disease was not aggravated by service. In the absence
of any evidence to the contrary, other than the veteran's own implicit
contentions, the Board can only find that the RO in 1955 reviewed the
correct facts and applied the correct law to reach a reasonable
conclusion. The Board concludes that the 1955 RO decision denying
service connection for a duodenal ulcer was not tainted by [CUE] and
thus reversal is not warranted.
R. at 14-15.
II. Contentions on Appeal
The appellant argues for reversal of the September 2002 Board decision; he asserts that the
Board erred by failing to consider and apply Akins v. Derwinski, 1 Vet.App. 228 (1991) (finding
CUE in RO's failure in 1946 to apply Veterans Regulation (VR) No. 1(a), part I, paragraphs (paras.)
1(b), (d) (1943)). App. Br. at 6-12. He contends that the Board "overlooked" the provisions of VA
Regulation 1063(I) (1946) [hereinafter VA Reg. 1063(I)] (implementing regulation for forerunner
of 38 U.S.C. §§ 1111 and 1153), regarding the presumption of soundness upon entry into service and
the presumption of aggravation, because the record before the RO in 1955 "contained no evidence
that the increase in severity of [his] ulcer condition was the natural progress of [his] pre-service
ulcer condition." Br. at 8. He states that the Court in Akins, supra, addressed VR No. 1(a) and
determined that a "'specific finding' requirement" was "essential to establish the natural progress of
the disease, as found in [VA Reg.] § 1063(I)"; he asserts that "had the Board considered and applied
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Akins, as required by 38 U.S.C. § 7104(a), the Board would have vacated and revised the November
1955 [RO d]ecision." Br. at 8-9.
The Secretary counters that the September 2002 BVA decision set forth the entire text of VA
Reg. 1063(I), and, therefore, the appellant's argument on that point is without merit. Secretary's
(Sec'y) Br. at 9. He argues that the appellant's reliance on the text of that provision is misplaced in
that the appellant "ignores that the [RO] in 1955 . . . would not have had to have found clear and
unmistakable evidence that an increase was the result of the natural progression of the disease, if it
could have concluded that there was no permanent increase in disability." Ibid. He contends that
the appellant's argument "ignores . . . the possibility that the presumptions in question would not
have attached in this case." Br. at 10. The Secretary does, however, propose a remand of the matter
in order for the Board to provide an adequate statement of reasons or bases for its decision;
specifically, he concedes that the Board "failed to make any finding as to whether a reasonable
fact[]finder . . . could have found that there was no permanent increase in disability, or, alternatively,
whether such a fact[]finder could have found that any such increase was the result of the natural
progression of the disease in question." Br. at 4-5.
In reply, the appellant argues that the RO had failed to apply correctly the presumption of
soundness because the facts of record, as it existed in 1955, evidenced a "marked increase in [his]
symptoms after being drafted" (Reply at 3-4) and that the Board therefore erred by "fail[ing] to
recognize that the presumption of soundness statute requires . . . VA to bear the burden of showing
the absence of aggravation in order to rebut th[at presumption]" (Reply at 6-7). In support of his
argument, the appellant points to a 1944 opinion of the chief legal officer, then called the Solicitor,
of the Veterans' Administration interpreting the 1943 enactment of section 9 of Public Law 78-144.
In accordance with the Solicitor's opinion, which the appellant asserts (without citation to authority)
was binding on the RO in 1955, he argues that "under the presumption of sound[ness], claimants
were not required to make a preliminary showing of an increase in disability during service." Reply
at 4-6. The appellant further argues that the instant case is indistinguishable from Akins, supra, and
Sondel v. West, 13 Vet.App. 213, 221 (1999), in that there is "no basis whatsoever to conclude that
the RO followed the extant statute[,] which presumes that the preexisting condition not noted at
entrance, but noted during service, was aggravated by service." Reply at 7.
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In June 2004, the Court issued a supplemental briefing order directing the parties to address
the impact on this case of (1) the opinion of the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), (2) this Court's holding in
Jordan v. Principi, 17 Vet.App. 261, 273 (2003), aff'd sub nom Jordan v. Nicholson, __ F.3d __
(Fed. Cir. 2005), No. 04-7034, 2005 WL 590654 (Fed. Cir. Mar. 15, 2004), and (3) the 1944 VA
Solicitor's opinion. In Wagner, the Federal Circuit held that 38 U.S.C. § 1111 requires that VA, in
order to rebut the section 1111 presumption of soundness, must show, by clear and unmistakable
evidence, that a veteran's disability existed prior to service and that it was not aggravated during
service. Wagner, 370 F.3d at 1096. In Jordan, this Court held that the Board did not err by failing
to apply in a 1983 BVA decision a presumption of aggravation as part of the presumption of
soundness under 38 U.S.C. § 1111 (formerly 38 U.S.C. § 311), because the Board was bound to
apply the Secretary's regulations in effect at the time of that 1983 decision being collaterally
attacked. Jordan, 17 Vet.App. at 273.
The appellant filed a supplemental brief arguing that Wagner, supra, supports his position
that the 1955 RO should have afforded him the benefit of the presumption of soundness and that the
BVA thus erred in determining that the RO had applied correctly the law extant at the time of its
1955 decision. App. Suppl. Br. at 2-3. He further asserts that the Federal Circuit's holding in
Wagner "must be applied by this Court retroactively" because that decision represents "not a change
in law, but rather . . . a judicial determination regarding what the statute has always meant." Suppl.
Br. at 3 (citing Rivers v. Roadway Express, Inc., 511 U.S. 298, 313 n.12 (1994)). The appellant
contends, in contrast to the position taken in his reply brief, that the 1944 VA Solicitor's opinion,
although "both supportive and confirming of the interpretation . . . in Wagner[,] . . . is not relevant
to the disposition of this appeal." Suppl. Br. at 4. As to the applicability of Jordan, supra, the
appellant contends that, although both Jordan and the instant case involve an interpretation of
section 1111, the disposition of the instant case "is controlled by this Court's prior interpretation of
. . . [VR No.] 1(a), [p]art I, para[.] 1(b), . . . in Akins[, supra]", and the appellant thus "respectfully
submits that Jordan . . . is neither relevant to nor necessary for this Court's consideration of the
disposition of this appeal." Ibid.
The Secretary responds that "[b]ecause Wagner was not decided in the context of a claim of
7
[CUE] in an earlier decision, it has no bearing on the case at hand." Sec'y Suppl. Br. at 11. He then
states that "the holding in Jordan supports the conclusion that the Wagner decision has no bearing
on this case." Suppl. Br. at 12. The Secretary does note that subsequent to the 1955 RO decision
the "and was not aggravated by" language was deleted from the applicable regulatory language.
Suppl. Br. at 9. (In February 1961, 38 C.F.R. § 3.63(b) and (d) were recodified as 38 C.F.R. §§
3.304 and 3.306(d), respectively, and the language "and was not aggravated by service" was deleted
from the then-new § 3.304 and most of what had been paragraph (d) was dropped. 38 C.F.R. § 3.304
(Supp. 1962).) He contends, however, that a "plausible basis existed for interpreting that 1955
regulation as requiring only clear and unmistakable evidence that the disability preexisted service."
Ibid. As to the Solicitor's opinion, the Secretary agrees with the appellant that that opinion has no
relevance to the case at bar. Suppl. Br. at 12-13.
III. Analysis
A. Applicable Law and Regulation
1. CUE Law and Regulation: An RO decision that has become final, as has the November
1955 RO decision at issue here, 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) (1996)); 38 C.F.R.
§ 3.105(a) (2004); see also 38 U.S.C. §§ 5108, 7105(c); cf. 38 C.F.R. § 3.400(q)(2) (2004)
(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).
8
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
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 Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir.
1999) (expressly adopting "manifestly changed the outcome" language in Russell, supra). "A
determination that there was [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 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, supra (concluding that "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, 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 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); see Damrel, supra
(discussing section 7261(a)(3)(A) standard of review applied to CUE claims), 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).
In Kent v. Principi, the Federal Circuit held as to judicial review of BVA decisions on CUE
claims:
[A]s we have previously held, the "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law" standard of
review employed by the . . . Court [of Appeals for Veterans Claims
(CAVC)] contemplates de novo review of questions of law. As we
said in Lane v. Principi, [339 F.3d 1331, 1339 (Fed. Cir. 2003)
9
(Lane II):] "In the first place, both section 7261(a)(1) ('decide all
relevant questions of law') and section 7261(a)(3)(A) ('otherwise not
in accordance with law') necessarily contemplate de novo review of
a legal issue such as the Board's interpretation of a regulation." Id.
Indeed, in the present case, the [CAVC] expressly noted that CUE
may be shown where "the statutory or regulatory provisions extant at
the time were incorrectly applied."
Kent, 389 F.3d 1380, 1384 (Fed. Cir. 2004) (citation omitted). Five months before Kent was issued,
this Court had concluded in like fashion as to the standard of review applicable in CUE claims to
Board determinations regarding the correct application of statutory or regulatory provisions;
specifically, in Andrews (Edward) v. Principi, in response to a remand from the Federal Circuit for
us "to decide the proper standard(s) for [our] review of the Board's determination . . . respecting
CUE", Andrews, 18 Vet.App. 177, 180 (2004) (quoting Federal Circuit's Andrews decision), we
stated that there are two aspects of BVA decisions on CUE claims that the Court reviews as matters
of law – whether the claimant "has presented a valid CUE allegation" and "whether an applicable
law or regulation was not applied." Id. at 182. The Court's de novo standard of review as to the first
aspect – that is, whether "a viable CUE allegation ha[ving] been presented" – was already established
expressly in the Court's caselaw, see Lane v. Principi, 16 Vet.App. 78, 83 (2002) (citing Phillips v.
Brown, 10 Vet.App. 25, 30 (1997) (applying "nondeferential de novo standard of review" to whether
CUE claim was presented below)), aff'd, Lane II, supra. The second aspect, nondeferential review
regarding whether an applicable law or regulation was not applied or was applied incorrectly, was,
by implication, ratified by Kent, supra, in terms of the correct application of the "otherwise not in
accordance with law" prong of the section 7261(a)(3)(A) standard of review. See Russell,
3 Vet.App. at 319-20 (concluding in CUE case that prior final RO decision contained error "as a
matter of law"); Akins, 1 Vet.App. at 232-33 (same). In this regard, we note that a failure to apply,
or apply correctly, an applicable law or regulation in the decision being collaterally attacked must
be shown undebatably. In the event of such an undebatable error, the Board's failure to find, in the
decision on appeal, such an error would be at least not in accordance with law if not also arbitrary,
or capricious, or an abuse of discretion. See Sondel, 13 Vet.App. at 220 (determining preliminarily
and then confirming that Board's failure to apply specific-finding requirement in VR No. 1(a)
rendered "Board's denial of the CUE claim . . . 'not otherwise in accordance with law'" (quoting
10
38 U.S.C. § 7261(a)(3)(A)); Akins, 1 Vet.App. at 233 (holding that Board decision finding no CUE
in 1946 RO decision that had not applied VR 1(a) was "not in accordance with law"). Hence, Kent
and Andrews were stating nothing new in this regard. The words "not in accordance with law" form
an independent prong of the section 7261(a)(3)(A) standard-of-review language; that is, in order to
affirm a Board decision that there was no CUE, the Court must find that the Board decision was not
"arbitrary, [or] capricious, [or] an abuse of discretion, or otherwise not in accordance with law". In
order to vacate such Board decision, the Court need find that only one of these criteria was violated
by the Board.
2. Law and Regulation applicable at time of 1955 RO decision: At the time of the 1955
RO decision, the governing law applicable to wartime veterans, which had been enacted by Congress
in the form of a regulation prescribed by the President in 1933, describing basic entitlement to
service-connected compensation benefits, the presumption of soundness, and the presumption of
aggravation of a preexisting condition, was found in VR No. 1(a), part I, paragraphs 1(a), (b), and
(d). (The governing law applicable to peacetime veterans on this point is VR. No. 1(a), part II.)
These paragraphs are currently codified at 38 U.S.C. §§ 1110 (formerly 38 U.S.C. § 310), 1111
(formerly 38 U.S.C. § 311), and 1153 (formerly 38 U.S.C. § 353), respectively, without substantive
change. As to the presumption of soundness, VR No. 1(a) then provided as follows:
(b) For the purposes of paragraph 1(a) hereof every person
employed in the active military or naval service shall be taken to have
been in sound condition when examined, accepted[,] and enrolled for
service except as to defects, infirmities[,] or disorders noted at time
of the examination, acceptance[,] and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease existed
prior to acceptance and enrollment and was not aggravated by such
active military or naval service.
VR No. 1(a), part I, para. 1(b), as amended by Pub. L. No. 78-144 § 9(b), 57 Stat. 554-560 (1943)
(emphasis added). VR No. 1(a) then provided the following as to the presumption of aggravation:
(d) That for the purpose of paragraph 1(a) hereof a
preexisting injury or disease will be considered to have been
aggravated by active military service as provided for therein where
there is an increase in disability during active service unless there is
a specific finding that the increase in disability is due to the natural
progress of the disease.
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VR No. 1(a), part I, para. 1(d) (1943) (emphasis added). The implementing regulation for the
forerunner of section 1111 was found at 38 C.F.R. § 3.63 (1949). The VA regulatory provisions
applicable to the instant case at the time of the November 1955 RO decision provided in pertinent
part:
(b) For the purposes of paragraph 1(a), Part I, Veterans'
Regulation No. 1(a), as amended July 13, 1943 (38 U.S.C. ch. 12),
every person employed in active service shall be taken to have been
in sound condition when examined, accepted[,] and enrolled for
service except as to defects, infirmities[,] or disorders noted at the
time of the examination, acceptance[,] and enrollment or where clear
and unmistakable evidence demonstrates that the injury or disease
existed prior to acceptance and enrollment and was not aggravated
by such service. . . .
....
(d) "Clear and unmistakable" means obvious or manifest.
Accordingly, evidence which makes it obvious or manifest, [sic] that
the injury or disease under consideration existed prior to acceptance
and enrollment for service will satisfy the requirements of the statute.
The requirement of the law is that claims to which the above-cited
presumptions apply be denied only on the basis of evidence which
clearly and unmistakably demonstrates that the disease did not
originate in service, or, if increased in service, was not aggravated
thereby.
38 C.F.R. § 3.63(b), (d) (1949) (emphasis added). Paragraph (i) of that regulation provided, in
pertinent part, the following as to "increase in service", a factor that had not been addressed at all in
the 1943 Public Law that had amended para. 1(b) of VR No. 1(a) as quoted above:
(i) Under Regulation 1(a), Part I, paragraphs 1(a), (b) and (d),
as amended July 13, 1943, (38 U. S. C. ch. 12), injury or disease,
apart from misconduct disease, noted prior to service or shown by
clear and unmistakable evidence, including medical facts and
principles, to have had inception prior to enlistment will be conceded
to have been aggravated where such disability underwent an
increase in severity during service unless such increase in severity
is shown by clear and unmistakable evidence, including medical
facts and principles, to have been due to the natural progress of the
disease. Aggravation of a disability noted prior to service or shown
by clear and unmistakable evidence, including medical facts and
12
principles, to have had inception prior to enlistment 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 such disability prior to, during and
subsequent to service. . . . Recurrences, acute episodes, symptomatic
fluctuations, descriptive variations and diagnostic evaluations of a
preservice injury or disease during service or at the time of discharge
are not to be construed as establishing increase of disability in the
absence of sudden pathological development or advancement of the
basic chronic pathology during active service such as to establish
increase of preexisting disability during service.
38 C.F.R. § 3.63(i) (1949) (emphasis added). In 1949, VA Reg. 1063 was codified in 38 C.F.R.
§ 3.63; paragraphs (B), (D), and (I) in VA Reg. 1063 were identical to the 1949 regulatory provisions
quoted above. 38 C.F.R. § 3.63 (1949). Although there were intervening changes to § 3.63 between
1949 and 1955, none of the changes are pertinent to the language of concern at this point.
B. CUE Attack on the 1955 RO decision
At the outset, we stress that we are not directly reviewing the 1955 RO decision for CUE, but,
rather, reviewing the 2002 BVA determination on that issue in order to determine whether that BVA
decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law",
38 U.S.C. § 7261(a)(3)(A); see Andrews, 18 Vet.App. at 183 (noting that Court may not "'conduct
plenary review of the merits of the original decision'" (quoting Archer v. Principi, 3 Vet.App. 433,
437 (1992)); Sondel, 13 Vet.App. at 220 (quoting Russell, 3 Vet.App. at 315). Furthermore, we note
that our review of the 2002 BVA decision must be done within the context of the law and evidence
at the time of the 1955 RO decision, see Russell, 3 Vet.App. at 314 – in other words, at a time when
the RO need not have discussed the evidence that it considered, or have stated its factual or legal
reasoning or that it was applying the clear-and-unmistakable-evidence standard in its decision – in
order for the Court to determine whether the Board was arbitrary, or capricious, or abusing its
discretion, or acting otherwise not in accordance with law in concluding that the RO could
reasonably have reached the conclusion that it did based on the law and evidence then extant, see
Natali v. Principi, 375 F.3d 1375, 1379-81 (Fed. Cir. 2004) (holding that 1945 RO's finding that Mr.
Natali's disability was "'due to a defect in the form and structure of the eye, held to be of a congenital
or developmental origin,'" although "not phrased in the language of [VR No. 1(a) was] . . . fully
13
equivalent to factual findings that Mr. Natali's disability . . . was not aggravated by . . . service" and
that "although the . . . [RO] did not expressly state that it had made its findings based on 'clear and
unmistakable evidence,' the board's statement that there was 'no evidence of any superimposed
disability during service which could have caused or aggravated the congenital condition'
demonstrates that the . . . [RO] understood that its findings on those issues needed to satisfy a high
standard of proof");1 Pierce v. Principi, 240 F.3d 1348, 1355-56 (Fed. Cir. 2001) (holding that, given
presumption of validity that attaches to RO decisions and fact that 1945 RO was not required to set
forth factual bases for decision, in absence of evidence to contrary RO is presumed to have made
requisite factual findings); Crippen, supra (stating that 38 U.S.C. § 5104(b) was added, by Pub. L.
No. 101-237, § 115(a), 103 Stat. 2062, 2065-66 (1989), effective February 1, 1990, to require RO
to specify in decision evidence considered and reasons for disposition and that prior to that
amendment ROs were not required to do so). Thus, in order to establish CUE in a pre-February-
1990 RO decision, it must be clear from the face of that decision that a particular fact or law had not
been considered in the RO's adjudication of the case. See Eddy, 9 Vet.App. at 58 (holding that
"[s]ilence in a final RO decision made before February 1990 cannot be taken as showing a failure
to consider evidence of record"); cf. Russell, 3 Vet.App. at 319 (holding that pre-February-1990 RO's
denial of existence of probative evidence of record constituted undebatable error in failing to
consider all evidence of record as required by VA regulation, 38 C.F.R. § 3.303(a) (1971)).
1. Presumption of Soundness: We deal first with the question of the presumption of
soundness, because if it applies and is not rebutted by clear and unmistakable evidence then "the
veteran's claim is one for service connection [based on incurrence in service]." Wagner, 370 F.3d
at 1096. The Federal Circuit characterized that situation as follows:
This means that [if such an award were made] no deduction for the
degree of disability existing at the time of entrance [would] be made
if a rating is awarded. See 38 C.F.R. § 3.322 [(2004)]. On the other
hand, . . . . [i]f the presumption of aggravation under section 1153
1
The Court notes with interest, however, (1) that in Natali v. Principi, 375 F.3d 1375, 1379-81 (2004), the
Federal Circuit seemed to assume that the interpretation of 38 U.S.C. § 1111 that was provided in Wagner v. Principi,
370 F.3d 1089, 1097 (Fed. Cir. 2004), applied retroactively to V R. No. 1(a), Part 1, paras. 1(b), (d); and (2) that in
Patrick v. Principi, No. 03-7003, 2004 W L 1530869, 103 Fed. Appx. 383 (Fed. Cir. July 2, 2004) (nonprecedential),
the Federal Circuit remanded a CUE case for consideration of Wagner, supra, in connection with the application of
38 U.S.C. § 1111.
14
arises, the burden shifts to the government to show a lack of
aggravation by establishing "that the increase in disability is due to
the natural progress of the disease."
Wagner, supra (footnote and citations omitted). In other words, the veteran may be entitled to a
higher disability rating if the presumption of soundness applies and is not rebutted than if
aggravation is found under section 1153 and its forerunners.
Under the law as it existed at the time of the November 30, 1955, RO decision, a veteran was
presumed to be in sound condition when no injury or disease was noted upon entry into service,
unless clear and unmistakable evidence established that the injury or disease existed prior to
enlistment and was not aggravated by service, see Pub. L. No. 78-144 § 9(b); at that time, Korean
Conflict veterans were eligible to benefit from the wartime presumption of soundness, see Pub. L.
No. 84-239, 69 Stat. 497 (Aug. 4, 1955). In evaluating the 1955 RO decision for CUE, the Board
concluded that that decision was not the product of CUE because the 1955 RO had determined
correctly that the appellant's ulcer had preexisted service and was not aggravated thereby. R. at 14.
Pertinent to the question of preexistence, the evidence before the 1955 RO consisted of the
following: (1) The appellant's statements "that he had had intermittent epigastric pain and vomiting"
for four to five years, as recorded in the Medical Board account (R. at 72); (2) the Medical Board's
recitation that the appellant had indicated that he had had a workup at KU medical center in May
1953 and was then treated for ulcers (ibid.); (3) the appellant's SMRs indicating "duodenal ulcer"
(R. at 37-44); and (4) the appellant's C&P application for service connection based on aggravation
(R. at 76-79). In light of this evidence, the Court cannot conclude, despite the appellant's argument
to the contrary, that it was arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law for the Board to determine that there was clear and unmistakable evidence at
the time of the 1955 (pre-February-1990) RO decision, notwithstanding that the RO did not
expressly so state, see Natali, supra, that the appellant's ulcer had preexisted service and that the RO
decision thus did not contain CUE. See 38 U.S.C. § 7261(a)(3)(A); Damrel, supra.
Having determined that the appellant's ulcer condition preexisted service, the Board was then
required to consider whether the RO in 1955 had been presented with clear and unmistakable
evidence that his ulcer condition, in the words of VR No. 1(a), "was not aggravated by [his] service."
15
VR No. 1(a), part I, para. 1(b); 38 C.F.R. § 3.63(b) (1949); see Sondel, 13 Vet.App. at 218. As set
forth in part III.A.2, above, the applicable VA regulation provided that aggravation, for purposes of
the presumption of soundness, was to be conceded if a preexisting condition underwent an increase
in severity during service, unless such increase was shown by clear and unmistakable evidence to
have been due to the natural progress of the disease or injury. See 38 C.F.R. § 3.63(i) (1949). In no
event was aggravation to be conceded "where the disability underwent no increase in severity during
service." Ibid. As to increase in severity, the evidence before the 1955 RO consisted of the
following: (1) The February 16, 1954, and April 13, 1954, SMR reports of the upper-gastro-
intestinal tract examination and re-examination (R. at 50, 51); (2) the Medical Board summary
noting a "marked increase in [the appellant's] symptoms after being drafted" (R. at 72); and (3) the
physical-profile notations, in box "P" of his SMR entry and exit examination reports, of an increase
from level "1" to "4" (R. at 34, 31), which indicated that at the time of separation he suffered from
a physical defect or medical condition, such as a "hernia[,] cardiovasuclar disease, asthma, [or]
peptic ulcer", Para. 6(a), AR 40-115, of such severity that he did not meet the "minimum standards
for induction", Para. 12, AR 40-115. Indeed, there is no indication that the organic defect signified
by the "4" physical-profile notation in box "P" was considered to be remediable or temporary. If that
were the case, the physical-profile notation in box "P" would have contained either the suffix "R",
which was "used to indicate that the individual has a remediable physical defect", Para. 7(a), AR 40-
115, or "T", which was "used to indicate that the individual has a remediable physical defect
temporary in nature", Para. 7(b), AR 40-115.
In this regard, the Court notes that the Medical Board's conclusion that the appellant's ulcer
condition was "not service aggravated" (R. at 66) could, as we conclude immediately below, have
been based only on an implicit finding of natural progression because that Medical Board expressly
found a "marked increase in symptoms after being drafted" (Ibid.). Even though the 1955 RO
decision is entitled to the presumption of validity, see Natali and Pierce, both supra, it is not
conclusively so presumed; here, although the in-service medical-examination reports were neutral
as to whether there was an increase in severity, all of the other evidence showed a permanent
increase. The Court thus holds that, because no reasonable factfinder could in 1955, as did the RO,
have applied 38 C.F.R. § 3.63(a) (1954) (requiring that "[d]eterminations as to service[]connection
16
should be based on review of the entire evidence of record in the individual case") to the
uncontroverted evidence then before the RO so as to find that there was not a permanent increase
in the severity of the appellant's ulcer in service, cf. R. at 418 (hearing-officer decision awarding
service connection for duodenal ulcer that had "permanently worsened during service"), the Board
decision was not in accordance with law in concluding that the RO had not erred undebatably in its
1955 decision to the extent that the RO's denial was based on a finding of nonaggravation of the
appellant's preexisting ulcer condition. See Russell, 3 Vet.App. at 119-20 (finding error, as "a matter
of law", in RO's violating 38 C.F.R. § 3.303(a) (1964) (successor to above § 3.63(a) requirement)
by "not considering [particular evidence] then in the record or mak[ing] an erroneous factfinding,
or both"); see also Sondel, 13 Vet.App. at 216 (stating that "CUE may be based on a showing 'that
there was no evidence before the RO that could have supported denial of the claim on the merits; that
is, [that] all of the evidence militated in support of the claim'" (quoting Crippen, 9 Vet.App. at 422,
and citing Link v. West, 12 Vet.App. 39, 45 (1998) (quoting Crippen, supra)). In other words,
because all the evidence of record in November 1955 supported the claimant's position, there was
only one permissible view of the evidence and the CUE challenge thus does not involve the weighing
or reweighing of evidence, there being no countervailing evidence on the negative side of the scale.
Cf. Andrews v. City of Bessemer City, 470 U.S. 564, 574 (1985) (stating that "[w]here there are two
permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous"
(citing United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)).
Accordingly, the Court holds that, insofar as the 2002 Board concluded that the 1955 RO did
not err undebatably to the extent that the RO based its finding of nonaggravation on a lack of
increased severity in service of the appellant's preexisting ulcer condition, that decision was not in
accordance with law. See 38 U.S.C. § 7261(a)(3)(A); Kent and Andrews, both supra; see also
Sondel, 13 Vet.App. at 221-22 (holding that Board failure to conclude that there was no in-service
aggravation of preexisting condition, given absence of "specific finding" of natural progression was
"'not otherwise in accordance with law'" (quoting section 7261(a)(3)(A)). The Court will therefore
reverse the Board decision to that extent. The Court thus need not determine whether the increased-
severity prerequisite was improperly applied at the time of the 1955 RO decision – that is, whether
the holding in Wagner, supra, had retrospective application – because there would have been error
17
in any finding that a lack of such an in-service increase was shown by clear and unmistakable
evidence. See VR No. 1(a), part I, para. 1(d).
The inquiry does not, however, end with this determination regarding undebatable error as
to an in-service increase in severity. The regulatory provisions in effect in 1955 further provided that
the aggravation prong of the presumption of soundness could be rebutted by a showing "by clear and
unmistakable evidence" that any increase was "due to the natural progress of the disease". 38 C.F.R.
§ 3.63(i) (1949). The Board determined, in its 2002 decision on appeal, that the RO's conclusion –
that the appellant's ulcer condition was not aggravated by service – was reasonable in light of there
being no evidence to contradict the findings contained in the Medical Board report. R. at 14.
Specifically, the Board noted that the Medical Board report "contained the conclusion that the
[appellant's] ulcer disease was not aggravated by service." Ibid. Although the Medical Board report
does not contain specific analysis in support of its conclusion, it appears to the Court that that
conclusion could have been based on any of three implicit findings: (1) That the appellant's ulcer
condition did not increase in severity during service; (2) that any increase was not permanent; or (3)
that any increase was the result of the natural progress of the ulcer, see Maxson v. West, 12 Vet.App.
453, 459-60 (1999), aff'd sub. nom Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding that
presumption of aggravation "is not for application" when "clear and convincing [sic] evidence . . .
demonstrate[s] . . . that the appellant sustained no permanent increase in disability during service");
Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991) (holding that "[t]emporary or intermittent flare-ups
during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in
service'"). However, based on the evidence before the Medical Board in 1954, only the third
possible alternative basis could be sustained here because (1) the Medical Board report also stated
specifically that the appellant had suffered a "marked increase in symptoms after being drafted"
(R. at 72) and (2), as indicated above, the Court does not believe it possible to conclude reasonably
that the appellant's ulcer condition did not undergo a permanent increase. Thus, it is not possible to
conclude reasonably, based on that same evidence, that the Medical Board implicitly found that the
appellant's ulcer condition did not undergo a permanent increase in severity.
That leaves the possibility that the Medical Board could have determined implicitly that the
increase in severity was the result of the natural progression of the condition. Although the RO
18
decision did not expressly state that it based its decision on having concluded that the Medical Board
made such an implicit finding, it would not have been error for the RO to have done so, nor for the
Board to have concluded, on that basis, that the RO's decision was reasonable. See Natali, Pierce,
and Crippen, all supra. Thus, the Court holds that it was not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law for the Board to have found no CUE insofar as
the 1955 RO may have based its determination of nonaggravation on an implicit finding, by clear
and unmistakable evidence, of natural progression by the Medical Board. See 38 U.S.C.
§ 7261(a)(3)(A); Natali, Pierce, Crippen, and Damrel, all supra. Accordingly, the Court will affirm
the September 2002 BVA decision insofar as it determined that the 1955 RO's conclusion – that the
presumption of soundness under VR No. 1(a), part I, para. 1(b), had not been rebutted – was not the
product of CUE. Although the Court notes that the Board's analysis on this point was grossly
deficient in that it failed to discuss (1) increase in severity or natural progression in connection with
its conclusion as to the rebuttal of the presumption of soundness, see 38 U.S.C. § 7104(d)(1), and
(2) the applicability of the clear-and-unmistakable-evidence standard to the RO's adjudication in
1955, the Court has already remanded this case to correct a reasons-or-bases deficiency and has, in
the foregoing analysis, been able to carry out effective judicial review, see Gilbert v. Derwinski,
1 Vet.App. 49, 56-57 (1990). Hence, a remand to provide the Board still another opportunity to
furnish an adequate statement of reasons or bases would be superfluous.
2. Presumption of Aggravation: That leaves the question whether the Board's determination
that the presumption of aggravation was not applied in a clearly and unmistakably erroneous way
by the 1955 RO was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law. For the reasons that follow, we hold that the Board decision was not in accordance with law
in this respect.
As a threshold matter, the presumption of aggravation (presently set forth in 38 U.S.C.
§ 1153) is generally triggered by evidence that a preexisting disability has undergone an increase in
severity in service. See Maxson, 12 Vet.App. at 460. Thus, having concluded in part III.B.1, above,
that the Board's decision was not in accordance with law in concluding that the 1955 RO decision
did not err undebatably insofar as it had found no permanent increase, it follows that the presumption
of aggravation was triggered in this case. Under VR No. 1(a), a preexisting condition that increased
19
in severity during service will be considered to have been aggravated by service "unless there is a
specific finding that the increase in disability is due to the natural progress of the disease." VR No.
1(a), part I, para. 1(d) (emphasis added); cf. 38 U.S.C. § 1153 (containing same requirement); 38
C.F.R. § 3.306(a) (2004). It appears, however, that the Board applied the "clear and unmistakable
evidence" standard contained in 38 C.F.R. § 3.63(i) (1949) without regard to the "specific finding"
language of VR No. 1(a). R. at 11, 14. The text of § 3.63(i), although in keeping with the
presumption of soundness because it is virtually identical to the language of VR No. 1(a), part I,
para. 1(b), is significantly at odds with VR No. 1(a), part I, para. 1(d), because it does not contain
the "specific finding" language. Compare VR No. 1(a), part I, para. 1(d), with 38 C.F.R. § 3.63(i)
(1949). It seems apparent to the Court that the standard for rebutting the presumption of aggravation
found in VR No. 1(a) part I, para. 1(d), in November 1955 required that any such "specific finding"
of natural progression be explicitly made, which the Court believes to be in many cases – and
certainly in this one – a more stringent (and more favorable to the veteran) standard than the "clear
and unmistakable evidence" standard by which to rebut the aggravation prong of the presumption
of soundness in 1955. See BLACK'S LAW DICTIONARY 1406 (7th ed. 1999) (defining "specific" as
"explicit"); WEBSTER 'S NEW WORLD DICTIONARY 479 (3rd College ed. 1988) (defining "explicit"
as "clearly stated and leaving nothing implied; distinctly expressed; definite; distinguished from
IMPLICIT "); see also Barnett Bank, N.A. v. Nelson, 517 U.S. 25, 38 (1996) (setting forth definition
of "specifically" and contrasting "specific" with "implicit").
Indeed, in Akins, this Court addressed the presumption of aggravation under VR No. 1(a) and
held the "specific finding" language quoted above to be "dispositive". Akins, 1 Vet.App. at 232. The
Court stated there that, because the record at the time of the 1946 RO (Akins) decision being
collaterally attacked did not "contain the specific findings required to establish natural progression
of a disease", the RO's "failure to observe the requirements of [the] regulation [sic] . . . constituted,
as a matter of law, clear and unmistakable error". Ibid (bracketed material in original) (emphasis
added). The Court thus reversed the BVA decision denying the CUE claim there and remanded the
matter with an instruction to the Secretary "to amend the 1946 [RO] decision to award service
connection and determine the appropriate disability rating for [the] appellant". Id. at 233. In Sondel,
we relied "strictly" on Akins and concluded that the Board's denial of CUE in the 1947 RO (Sondel)
20
decision being collaterally attacked in Sondel was "'not otherwise in accordance with law'" because
the Board had not noted "any medical evidence indicating, let alone making a 'specific finding', that
the symptomatology for which the veteran was discharged represented a natural progression of a
preexisting condition"; the Court further noted that "the Board could not have discussed such a
specific finding because no such finding [was] contained in the record that had been before the RO
in 1947." Sondel, 13 Vet.App. at 219-20 (quoting 38 U.S.C. § 7261(a)(3)(A); Akins, supra). These
analyses in Sondel and Akins demonstrate that the Court there was requiring that the "specific
finding" be one made in writing. We agree that, under these circumstance, the only way to determine
whether such an explicit, as distinguished from implicit, finding was actually made is to locate one
that was in the record at the time of the decision being collaterally attacked. See BLACK'S LAW
DICTIONARY and WEBSTER 'S NEW WORLD DICTIONARY , both supra. In addition, although noting
that Akins, supra, did not address the disparity between VR No. 1(a) and regulatory § 3.63(i), the
Court held in Sondel that "[t]he administrative regulation could not have altered a provision in the
VR, and the Court finds no evidence that it was intended to do so", and thus concluded as to wartime
veterans "that the Secretary must have intended the revised presumption of aggravation . . . to be at
least as beneficial . . . as the presumption applicable to peacetime veterans." Sondel, 13 Vet.App.
at 220. Significantly, the implementing regulation in 38 C.F.R. § 3.63(k) (1949) for VR No. 1(a),
part II, para. 1(a), which provided for the peace-time-service presumption of aggravation, contained
the same "specific finding" language found in VR No. 1(a), part I, para. 1(d). That same requirement
is now contained in 38 U.S.C. § 1153 and 38 C.F.R. § 3.306(a) (2004) and applies equally to
wartime and peacetime service. As this Court held in Sondel, supra, the "specific finding" language
of VR No. 1(a), part I, para. 1(d), is a prerequisite for rebutting the wartime presumption of
aggravation, and, thus, its omission from the regulatory language of 38 C.F.R. § 3.63(i) (1949) does
not permit a reading that natural progress can be found only by "clear and unmistakable evidence".
In the instant case, as in Sondel and Akins, both supra, it is undisputed that the RO made no
such "specific finding", and that the record before the RO in 1955 in the instant case did not contain
any such finding, that the increased severity of the appellant's ulcer condition was due to the natural
progression of the disease, as was then required by VR No. 1(a), part 1, para. 1(d). Although the
Secretary argues that Sondel and Akins, both supra, are distinguishable from the instant case in that
21
here the Court is not presented with "a situation where the condition which preexisted service led
to 'other diseases' causing or contributing to discharge" (Br. at 10), the text of VR No. 1(a), part 1,
para. 1(d), does not support that distinction; therefore, Sondel and Akins, both supra, control the
resolution of this question. See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (stating that panel
decisions constitute "binding precedent" unless overturned by en banc opinion of this Court or
decision of Federal Circuit or U.S. Supreme Court). In this regard, the Federal Circuit's holding in
Natali, supra, is distinguishable because there the Court concluded that the 1945 RO decision being
attacked collaterally had found that '"the increase in loss of vision in service is considered to be the
result of natural progress.'" Natali, 375 F.3d at 1380 (quoting 1945 RO decision). Thus, because
this Court has previously held in Sondel, 13 Vet.App. at 218, that a specific finding of natural
progression is required to rebut the wartime presumption of aggravation in VR No. 1(a), part 1, para.
1(d), and because neither the 1955 RO decision nor any medical evidence then in the record on
appeal contains2 in the instant case any such specific finding, the Court holds in the instant case that
the Board decision was not in accordance with law. That is so because it cannot be concluded
reasonably that that 1955 RO decision did not contain an undebatable error insofar as it determined
that the presumption of aggravation, under VR No. 1(a), part 1, para. 1(d) and 38 C.F.R. § 3.63(i)
(1949), had been rebutted on the basis of an implicit Medical Board finding that the increase in
disability was due to the natural progress of the disease. See 38 U.S.C. § 7261(a)(3)(A) (requiring
Court to set aside Board decisions found to be . . . "not otherwise in accordance with law"); Sondel
(applying that standard to reach same conclusion as in Akins, 1 Vet.App. at 232, which held that it
was "undebatable" that the 1946 RO did not consider the "specific finding" requirement in VR. No.
1(a)); Damrel and Akins, both supra. Accordingly, the Court will also reverse the Board decision
to that extent. Having held that the Board erred in not concluding that the 1955 RO had erred
2
As to the specific-finding requirement, the Court notes the Secretary's interpretation of the analogous
provision (applicable to peacetime service) in 38 C.F.R. § 3.63(k), propounded at oral argument, that the words "will
be met" in the second sentence of that regulation suggest that the "specific finding" could be made by other than "a
finding of a constituted [VA] rating agency". See 38 C.F.R. § 3.63(k) (1949) ("[a] specific finding that the increase in
disability is due to the natural progress of a disease will be met, for purposes of Part II, paragraph 1(a), of Regulation
1(a), by a finding of a constituted rating agency of the Veterans' Administration based upon available evidence of a nature
generally acceptable as competent to show that an increase in severity of a disease or injury, or of the disabling effects
thereof, or acceleration in progress of a disease was that normally to be expected by reason of the inherent character of
the condition, aside from any extraneous or contributing cause or influence peculiar to military service").
22
undebatably in the instant case by finding that the presumption of aggravation was rebutted in this
case, we next turn to the issue of service connection. See Cotant v. Principi, 17 Vet.App. 116, 132
(2003).
3. Service Connection: The Board was not called upon to address the question of service
connection because it had concluded that the RO could reasonably have found that the presumption
of aggravation was rebutted. As the Court stated in Cotant, "[i]n order for a preexisting condition
aggravated in service to be found to be service connected, the three so-called Caluza [v. Brown,
7 Vet.App. 498, 507 (1995),] elements must be satisfied." Cotant, supra. In order for the appellant's
CUE claim to succeed here, he must show that, based on the evidence and law at the time of the
1955 RO decision, the outcome would have been manifestly different, that is, that service connection
by aggravation would undebatably have been awarded in 1955 had the RO not erred regarding the
presumption of aggravation. See Bustos and Russell, both supra; see also Sondel, 13 Vet.App. at
220-21. In Sondel, we addressed specifically under which circumstances the Court could reverse
outright and under which circumstances it would remand to the Board on the question "whether [the]
error would have caused a manifest change in the outcome of the veterans' original claim." Sondel,
13 Vet.App. at 221. The Court held:
We thus reaffirm today that, when it is clear, on the face of the
decision being assailed for CUE, that the error alleged did in fact
occur and would manifestly have changed the outcome of the case,
the Court will reverse, rather than only vacate and remand, as to the
BVA decision. This holding is consistent with the holdings of this
Court and other courts that a remand is unwarranted when it would
serve only to fulfill a procedural duty that would unnecessarily delay
and burden agency resources.
Ibid. (citing Bigelow v. Va., 421 U.S. 809, 826-27 (1975), and Consol. Aluminum Corp. v. Foseco
Int'l Ltd., 910 F.2d 804, 814 (Fed. Cir. 1990)).
Based on the evidence of record here, remand to the Board for factfinding is necessary in
order for the service-connection determination to be made, because the Court does not have the
authority to engage in de novo factfinding. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir.
2000). This is the same situation that existed in Cotant, supra, Mason (Sangernetta) v. Brown,
8 Vet.App. 44, 53 (1995), and Russell, supra, that is, the Board had not addressed the manifest-
23
outcome-change CUE prerequisite, and it was not clear on the face of the evidence in the record on
appeal "that the correction of the error would have changed the outcome – that is, that service
connection would have resulted", Russell, 3 Vet.App. at 320 (remanding for Board to consider
service-connection aspect of particular CUE claim that Board had failed to decide); Mason,
8 Vet.App. at 53 (remanding for Board to "determine whether, on the entire evidence of record
before the RO in 1988 (including the lay statements), the evidence establishes manifestly that the
correction of the error would have changed the outcome – that is, that service connection would have
resulted"); see also Cotant, 17 Vet.App. at 133 (remanding for Board to consider whether nexus
element was unnecessary in light of 38 C.F.R. "§ 3.303(b) [(2002)], relating to chronicity or
continuity of symptomatology", which "ha[d] not been addressed by the Board").
At a minimum, therefore, the Court should generally not reverse a Board CUE-claim denial
where the Board did not address an essential aspect of the CUE claim. We note that in Sondel and
Akins, on which we rely today in large part, the Court did reverse the Board's denial of the CUE
claim and direct that the RO decision involved be revised, based on CUE, so as to award service
connection for the disability in question. Sondel, 13 Vet.App. at 222; Akins, 1 Vet.App. at 233. In
both of those cases the appellant's disability (in Sondel, right-thigh neuromuscular pain, resulting
from aggravation of preexisting surgical removal of benign tumor from right thigh resulting in
medical discharge; in Akins, loss of eye, resulting from aggravation in service of glaucoma condition
assumed to have preexisted but not shown by specific finding to have resulted from natural
progression of glaucoma) was unquestionably present upon discharge and the appellant applied for
VA service connection within one month after discharge, Sondel, 13 Vet.App. at 215; Akins,
1 Vet.App. at 230. Under those circumstances, there would be no need to show a then-current
condition and a nexus between that condition and the veteran's service, see Hampton v. Gober,
10 Vet.App. 481, 482 (1997) (holding that "diagnosis of . . . condition . . . in separation examination
report provides evidence of both a current . . . condition and a relationship to service" where
application for VA compensation for that condition was filed one month after separation
examination). Hence, in Akins and Sondel the elements of service connection were clear on the face
of the record before the RO decision being attacked collaterally and remand would have served "only
to fulfill a procedural duty that would unnecessarily delay and burden agency resources" to decide
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whether "the error alleged . . . would manifestly have changed the outcome of the case" had it not
been committed. Sondel, 13 Vet.App. at 221. That is not the situation in the instant case. Moreover,
in Sondel, the Board had determined that "any error committed by the RO in 1947 would not have
resulted in a manifestly different outcome", Sondel, 13 Vet.App. at 222.3 Accordingly, as in Russell
and Mason, we will vacate the Board decision as to its denial of CUE in the 1955 RO decision and
remand for the Board to make the 1955 service-connection determination. See Russell, 3 Vet.App.
at 420; Mason, supra; see also Cotant, supra.
IV. Conclusion
On the basis of the foregoing analysis, the record on appeal, and the parties' pleadings, and
having "take[n] due account of the rule of prejudicial error" under 38 U.S.C. § 7261(b)(2), the Court
affirms that part of the September 2002 BVA decision that found no CUE in the 1955 RO decision
insofar as the RO found that the presumption of soundness was rebutted, and reverses those parts
of the September 2002 BVA decision that found no undebatable error in the 1955 RO decision
insofar as the RO found that the appellant's ulcer condition underwent no permanent increase during
service and that the presumption of aggravation had been rebutted. The Court vacates the BVA
decision's denial of CUE and remands the matter for expeditious issuance of a readjudicated decision
on the service-connection question, supported by an adequate statement of reasons or bases, see, e.g.,
38 U.S.C. §§ 5109A, 7104(a), (d)(1), 7261; VR No. 1(a), part I, paras. 1(b), (d); 38 C.F.R. § 3.105(a)
(2004); see Russell, Cotant, and Mason, all supra, Fletcher v. Derwinski, 1 Vet.App. 394, 397
(1991); cf. 38 C.F.R. § 3.63(k) (1949); Sondel and Akins, both supra, all consistent with this opinion
and in accordance with 38 U.S.C. § 7112 (as added by the Veterans Benefits Act of 2003, Pub. L.
No. 108-183, § 707(b), 117 Stat. 2651, 2673) (requiring Secretary to "take such actions as may be
necessary to provide for the expeditious treatment by the Board of any claim that is remanded to the
Secretary by the Court"); see Vargas-Gonzalez v. Principi, 15 Vet.App. 222, 225-30 (2001) (holding
that section 302 of Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302,
3
It does not appear from the Court's opinion in Akins, supra, that the Board had addressed whether
consideration of the "specific finding" requirement would have resulted in the award of service connection, but Akins
was decided long before the en banc Court in Russell, supra, set forth the manifest-outcome change CUE prerequisite.
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108 Stat. 4645, 4658, predecessor of section 7112, applies to all elements of a claim remanded by
the Court or Board), and in accordance with all applicable law and regulation. See Allday v. Brown,
7 Vet.App. 517, 533-34 (1995); see also Fenderson v. West, 12 Vet.App. 119, 126 (1999) (providing
for consideration of staged ratings in connection with initial award of service connection). On
remand, the appellant will be free to submit additional evidence (to the extent 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 v. Principi, 16 Vet.App. 529, 534 (2002). A remand by this Court or 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 date on which notice
of the Board's new final decision is mailed to the appellant. See Marsh v. West, 11 Vet.App. 468,
472 (1998).
AFFIRMED IN PART; REVERSED IN PART, VACATED IN PART, AND REMANDED.
HAGEL, Judge, concurring: I write separately only to express my disagreement with the
majority's use of Hampton v. Gober, 10 Vet.App. 481 (1997), to justify the result in Akins v.
Derwinski, 1 Vet.App. 228 (1991), and Sondel v. West, 13 Vet.App. 213 (1999).
The majority states that the appellants in Akins and Sondel had disabilities that were
unquestionably present at discharge and that they had applied for service connection within one
month after discharge. Ante at 23. The majority concludes that the Court properly directed awards
of service connection in those cases without remanding for a determination of whether the elements
of service connection had been satisfied because the circumstances in those cases eliminated the need
to show a then-current disability and a nexus to service. Id. To support its conclusion, the majority
cites Hampton.
In Hampton, the evidence of record included a separation examination report that reflected
a diagnosis of a knee condition, and the appellant had filed a claim for service connection within
approximately one month of his separation examination. Hampton, 10 Vet.App. at 482. Although
the Court held that the examination report constituted some evidence of both a current disability and
a nexus to service, the majority omits from its discussion that that evidence was deemed sufficient
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only to satisfy the then-existing and less demanding well-grounded-claim requirement, thereby
triggering VA's duty to assist the appellant in obtaining evidence to substantiate his claim. See id.
Ultimately, the Court remanded for the Board to order an examination that addressed the elements
of service connection. See id. at 483. Therefore, Hampton does not stand for the proposition for
which it is used by the majority, i.e., that service connection is established when a claimant
demonstrates that a disability was unquestionably present at discharge and that a claim for service
connection was filed within one month after discharge. To support further my belief that Hampton
does not provide proper authority for the result reached in Akins and Sondel, I note that Akins
preceded Hampton and that Sondel, which relied heavily on Akins and postdated Hampton, did not
acknowledge or rely in any way on the Court's decision in Hampton. See Sondel, 13 Vet.App. at 219
("The applicability of Akins to the instant matter is obvious; the facts of this case are
indistinguishable from those in Akins.").
In sum, any justification by the majority of the result reached by the Court in Akins and
Sondel by means of a citation to Hampton is in my view an unconvincing attempt to reconcile the
contrasting results in Akins, Sondel, Cotant v. Principi, 17 Vet.App. 116, 132-33 (2003), and the case
we decide today. In the absence of convincing authority reconciling the results reached in those
cases, the Court risks reaching inconsistent outcomes in cases involving similar circumstances. I
believe that our jurisprudence would benefit from a more careful examination of these issues.
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