Veteranclaims’s Blog

March 21, 2009

CUE, Richardson v. Nicholson, No. 03-2100, sympathetic reading to veteran’s earlier filings

Filed under: CUE; RObertson; Szemraj; — veteranclaims @ 6:01 pm

These are NON-attorney comments on the CAVC decision issued in Richardson v. Nicholson, No. 03-2100 (Decided May 17, 2006)

“The Federal Circuit held that, upon receipt of a request for revision on the basis of CUE, “VA must give a sympathetic reading to the veteran’s filings in that earlier proceeding to determine the scope of the claims.” Id.; see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).”

KASOLD, Judge, concurring”

I also write to contrast Andrews with two situations not present here, and to which the CUE analysis in Andrews is not applicable.

First, the CUE aspect of Andrews is inapplicable to cases in which an RO decision or certain subsequent procedural rights were never provided with regard to a claim for VA benefits or the pleadings of a claimant for VA benefits. In such cases, the entire claim for benefits and all aspects of that claim remain open – in an unadjudicated status – and the claim can be pursued in a non-CUE context. See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (allowing claimant pursuing claim to reopen to assert that his original claim was never final because no Statement of the Case (SOC) had been provided); Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (allowing claimant pursuing an increased rating claim to assert that his claim was never final because the Secretary failed to mail him a copy of the Board decision pursuant to 38 U.S.C. 7104(e)); Kuo v. Derwinski, 2 Vet.App. 662, 666 (1992) (allowing claimant pursuing an increased rating claim to assert that he was entitled to an earlier effective date because no SOC had been provided); Ashley v. Derwinski, 2 Vet.App. 307, 311 (1992) (finding claim in non-final status when the Secretary failed to mail a claimant a copy of the Board decision pursuant to 38 U.S.C. 7104(e)(3)); see also Cook v. Principi, 318 F.3d 1334, 1340 (2002) (citing favorably Tablazon, Hauck, Kuo, and Ashley, all supra, and finding a non-final claim occurs when “the time for appealing either an RO or a Board decision did not run where the [Secretary] failed to provide the veteran with information or material critical to the appellate process”); Woznick v. Nicholson, 19 Vet.App. 198, 201-02 (2005) (directing the Secretary to issue an SOC as to the appellant’s claim).

Fed Appeal Wording:
“Because the Board failed to apply Roberson prior to addressing whether Mr. Richardson reasonably raised a claim for psychoneurosis in 1944, this matter must be remanded to the Board to make the requisite factual findings. See 38 U.S.C. 7104(a); Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (finding that remand is the appropriate remedy where Board has failed to apply law correctly).”
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Tags: George T. Richardson v. Nicholson, No. 03-2100 (Decided May 17, 2006); CUE motion; request for revision; VA’s failure [in Andrews] to consider all aspects of a claim does not render its decision non-final but instead ‘is properly challenged through a CUE motion.'” Bingham, 421 F.3d at 1349; Bingham, 421 F.3d at 1349; Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005); Andrews, 421 F.3d at 1281; Roberson; Szemraj; Moody; sympathetic reading; Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005); 38 C.F.R. 3.160(c) (2005); “pending claim” ;

Tagged Items:
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Regarding Andrews, the Bingham Court stated that “VA’s failure [in Andrews] to consider all aspects of a claim does not render its decision non-final but instead ‘is properly challenged through a CUE motion.'” Bingham, 421 F.3d at 1349 (quoting Andrews, 421 F.3d at 1281).
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Mr. Richardson argues that, in denying his request for revision of
the August 1944 RO decision on the basis of CUE, the Board misinterpreted and misapplied the rule of law articulated in Roberson, which has since been further explained in Szemraj and Moody.
Appellant’s Brief (Br.) at 6-10. He argues that under Roberson, Szemraj, and Moody, VA has a duty to fully and sympathetically read the pleadings and evidence submitted in support of his prior claim before adjudicating his request for revision on the basis of CUE. Id. at 9. He states that it is apparent that the Board did not apply the principles articulated in Roberson before denying his request for revision on the basis of CUE. Id. at 6-7.
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VA must read all pro se submissions sympathetically, including submissions in claims underlying a request for revision on the basis of CUE, to “‘determine all potential claims raised by the evidence, applying all relevant laws and regulations.'” Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005) (quoting Roberson, 251 F.3d at 1373); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (stating that “‘Roberson requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to the veteran’s filings'” (quoting Szemraj, 357 F.3d at 1373)).

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Thus, a claimant may assert that VA failed to adjudicate a reasonably raised claim in the context of a request for revision of a prior decision on the basis of CUE.[ 7Whether or not CUE is the exclusive way to raise such a matter is an issue we need not address in order to decide the matter before us.]7 See Bingham, Andrews, Moody, and Roberson, all supra. When presented with such a request, VA must make two threshold factual determinations. First, VA must apply the holding in Roberson and give a full and sympathetic reading to the pro se claimant’s prior submissions to determine whether such a claim was reasonably raised. If it is determined that a claim was reasonably raised, VA must then determine whether such a claim is pending or whether it was adjudicated as part of a final decision.[ 8A claim that has not been finally adjudicated is necessarily pending. See 38 C.F.R. 3.160(c) (2005) (defining “pending claim” as a claim “which has not been finally adjudicated”).]8 If such a reasonably raised claim remains pending, then there is no decision on that claim to revise on the basis of CUE; however, the claim must be adjudicated. See Roberson, 251 F.3d at 1384-85 (determining that the appellant’s earlier submissions raised a TDIU claim as a matter of law and remanding the matter for a determination of entitlement to TDIU). If VA determines that the claim was adjudicated, then the claimant may collaterally attack the resulting decision on the basis of CUE. However, it is not for this Court to decide in the first instance whether such a claim ever existed or, if so, whether such a claim was ever adjudicated. See Moody, 360 F.3d at 1310.
In this case, although the Board determined that there “is no pending claim for service connection for psychoneurosis” based on Mr. Richardson’s statement in his 1944 application in conjunction with the “May 1944 hospital summary that diagnosed simple adult maladjustment,” the Board reached this conclusion without first applying Roberson and giving a “full and sympathetic reading” to Mr. Richardson’s 1944 submissions. R. at 10-11; see Roberson, 251 F.3d at 1384 (quoting Hodge, 155 F.3d at 1362).
After Szemraj, there is no question that the Board’s holding (based on our then-extant jurisprudence) that Roberson applies only in TDIU claims was incorrect. Because the Board failed to apply Roberson prior to addressing whether Mr. Richardson reasonably raised a claim for psychoneurosis in 1944, this matter must be remanded to the Board to make the requisite factual findings. See 38 U.S.C. 7104(a); Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (finding that remand is the appropriate remedy where Board has failed to apply law correctly).

On remand, the Board (or the RO[ 9The Board must determine, in light of Bernard v. Brown, whether it can apply Roberson in the first instance, or whether it must remand the matter to the RO. See Bernard, 4 Vet.App. 389, 394 (1993) (holding that when the Board addresses questions not addressed by the RO, “it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby”).]9)

first should give a full and sympathetic reading of the appellant’s 1944 application to determine whether there is a pending, unadjudicated claim for psychoneurosis. If, after applying Roberson, it is determined that Mr. Richardson did not reasonably raise a claim for psychoneurosis in his 1944 application, or that such a claim was adjudicated, either as a separate and distinct claim or as part of the August 1944 RO decision, then the Board should adjudicate the request for revision on the basis of CUE. If the Board determines that the 1944 application reasonably raises a claim for psychoneurosis and that such a claim was not adjudicated, then the claim remains pending and must be referred to the RO for a determination of Mr. Richardson’s entitlement to service connection for psychoneurosis based on the 1944 application because a claim on which there has been no final decision cannot be addressed in a request for revision on the basis of CUE.[ 10The matter would have to be remanded to the RO (if not already remanded by the Board) for an initial decision on the claim. See Godfrey v. Brown, 7 Vet.App. 398, 408 (1995) (holding “that the Board did not err in referring the matter to the RO because the Board did not have appellate jurisdiction to review the veteran’s claim of entitlement to benefits under section 1110 . . . and lacked jurisdiction to adjudicate the merits of that claim”).]10 See Norris, 12 Vet.App. at 422 (noting the pendency of an unadjudicated TDIU claim before the RO because the RO failed to adjudicate a claim for TDIU as part of an informal claim for an increased rating); see also Roberson, 251 F.3d at 1385 (remanding the matter of eligibility for TDIU after determining that a TDIU claim was reasonably raised by the veteran’s submissions).
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 03-2100

George T. Richardson, Appellant,
v.
R. James Nicholson,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Decided May 17, 2006)

Kenneth M. Carpenter, of Topeka, Kansas, was on the brief for the
appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant
General Counsel; Brian B. Rippel, Deputy Assistant General Counsel; and
Thomas E. Sullivan, all of Washington, D.C., were on the brief for the appellee.

Before KASOLD, MOORMAN, and SCHOELEN, Judges.

SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Judge, and MOORMAN, Judge, filed concurring opinions.

SCHOELEN, Judge: The appellant, George T. Richardson, through
counsel, appeals a September 5, 2003, Board of Veterans’ Appeals (Board) decision denying his requests for revision of August 1944 and May 1946 VA regional office (RO) decisions on the basis of clear and unmistakable error (CUE). Record (R.) at 1-18. This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. 7252(a) and 7266. For the following reasons, we will vacate the Board’s determination that there was no CUE in the August 1944 RO decision and remand that matter, and we will affirm the Board’s determination that there was no CUE in the May 1946 RO decision.

I. BACKGROUND

Mr. Richardson served on active duty in the U.S. Army from June to
September 1935 and from September 1942 to July 1944. R. at 220, 261. Service medical records indicate treatment for various conditions. For example, he was seen by a doctor in July 1943 for weakness and fainting attacks and was diagnosed with carotid sinus syndrome.[ 1Carotid sinus syndrome is a “stimulation of a hyperactive carotid sinus, causing a marked fall in blood pressure due to vasodilation, cardiac slowing, or both.” Stedman’s Medical Dictionary 1749 (27th ed. 2000) [( hereinafter Stedman’s]) 1 7 4 9 . The carotid sinus is located at the level of the C4 vertebra in the neck. See id. at 137 .]1 R. at 57-59. Additional service medical records indicate a diagnosis of sinusitis and carotid sinus syndrome. R. at 122. In January 1944, after spending five weeks in rehabilitation for his symptoms, Mr. Richardson was diagnosed with mild neurocirculatory asthenia.[ 2 Neurocirculatory asthenia is “a type of anxiety neurosis formerly encountered often among military personnel during times of war, in which cardiorespiratory symptoms, such as palpitation, rapid pulse, and precordial pain, were prominent.” Stedman’s 158.]2 R. at 96.
A May 1944 hospital report notes that he had spent 11 of his 20 months in service in the hospital. R. at 134. The final diagnoses listed on the hospital report are carotid sinus syndrome, simple migraine[ 3
Migraine, also known as a vascular headache, is “[a] symptom complex occurring periodically and characterized by pain in the head (usually unilateral), vertigo, nausea and vomiting, photophobia, and
scintillating appearances of light.” Stedman’s 1118.]3
aggravated by psychological factors, and simple adult maladjustment[
4Maladjustment is “an inability to cope with the problems and
challenges of everyday living.” Stedman’s 1056.]4 syndrome with
psychosomatic manifestations. R. at 135. That report also notes that Mr. Richardson was seen by a neuropsychiatrist who “concurred in the opinion that we were not dealing with a psychoneurosis[ 5Psychoneurosis was formerly used to describe “a classification of neurosis that included hysteria, psychasthenia, neurasthenia, and the anxiety and phobic disorders.” Stedman’s 1477.]5 in this instance.” Id. At discharge, he was found to be unfit for further military service because of moderate right carotid sinus syndrome, which had its onset in July 1943 and was manifested by “syncope,[ 6Syncope is a “[
l]oss of consciousness and postural tone caused by diminished cerebral blood flow.” Stedman’s 1745.]6 following pressure on the right side, and a history of dizziness and fainting.” R. at 186.
In August 1944, Mr. Richardson, acting pro se, filed an application
for VA benefits (Form 526), in which, in the blank after “Nature of
disease or injury on account of which claim is made and the date each
began,” he described his injuries as follows:
Claimant had an attack of fever on 7-3-43. This was followed by 3
attacks of pneumonia. As a result[,] heart was affected and claimant
has had migraine headaches since that time. Nerves in throat
controlling heart have been injured and claimant is unable to have
any strenuous physical activity. Claimant’s nervous system has been
affected until he is unable to concentrate for any period of time.
R. at 220-21. In August 1944, the RO granted service connection for right
carotid sinus syndrome, rated 30% disabling, and for migraine, rated 20%
disabling, for a combined rating of 40%. R. at 226. A VA medical
examination, dated February 1946, listed only a diagnosis of “
hypersensitive carotid sinus with carotid sinus syndrome.” R. at 243. A
March 1946 neuropsychiatric examination report noted that Mr. Richardson
suffered from an inability to concentrate, dizziness, chills, and fever.
R. at 245. The examiner stated that these symptoms were “secondary in
most part to a carotid sinus syndrome,” and diagnosed only carotid sinus
syndrome. Id. In response to a request by the RO for a “proper
neuropsychiatric diagnosis in this case,” the VA examination reports were “
reviewed with various examiners and [the] diagnosis of migraine [was]
found to be in error.” R. at 248, 252. In May 1946, the RO reclassified
Mr. Richardson’s disability as “hypersensitive carotid sinus with carotid
sinus syndrome; associated with headaches, formerly diagnosed as migraine,”
and increased his disability rating for carotid sinus syndrome to 50%. R.
at 254. His rating for migraine was reduced to 0%. Id.
In April 1959, Mr. Richardson was hospitalized for observation and
examination for reevaluation purposes. R. at 264-65. In August 1959, the
RO again reclassified his service- connected condition to be “
psychoneurosis conversion type with headache & vasomotor instability,
formerly diagnosed as migraine & hypersensitive carotid sinus,” and his
rating was reduced from
50% to 30%, effective October 3, 1959. R. at 264-66. No reference was
made to his 0% rating for migraine. Id.
In March 1996, Mr. Richardson, through counsel, filed a request for
revision of the August 1944 and August 1959 RO decisions on the basis of
CUE. R. at 270-71. He specifically asserted that the RO should have
considered whether he had psychoneurosis in its August 1944 decision,
based on the 1944 application. R. at 271. In an October 1996 decision,
the RO determined that it did not have jurisdiction to consider the CUE
issues. R. at 289-90. In a September 2001 decision, the Board reviewed
the two requests for revision on the basis of CUE arising from the August
1944 and August 1959 RO decisions and recognized a third allegation of CUE
in the May 1946 decision, based on the reduction of Mr. Richardson’s
rating for migraine. R. at 358-60; 369-70. Pursuant to the holding in
Brown v. West, the Board concluded that the RO did have original
jurisdiction to consider CUE issues and remanded the matter to the RO.
203 F.3d 1378 (Fed. Cir. 2000) (holding that an intervening Board decision
that does not decide an issue subject to a request for revision on the
basis of CUE does not subsume prior RO decision so as to preclude RO’s
adjudication of the request for revision on the basis of CUE); R. at 360,
369.
In July 2002, the RO determined that no revision was warranted in the
August 1944, May 1946, and August 1959 RO decisions. R. at 384-92. On
September 5, 2003, the Board issued the decision now on appeal, which
found no CUE in the August 1944 and May 1946 RO decisions. R. at 1-18.
The Board also specifically held that Mr. Richardson did not have a
pending, unadjudicated claim for psychoneurosis. R. at 11 (“Upon review
of the claim, the closest the veteran comes to seeking service connection
for psychoneurosis was to report that his ‘nervous system has been
affected until he is unable to concentrate for any period of time.’ That
statement does not rise to the level of a claim of entitlement to service
connection for psychoneurosis, particularly in view of the May 1944
hospital summary that diagnosed simple adult maladjustment, and his
attorney does not contend that it does.”). With regard to the August 1959
RO decision, the Board found that the decision was inadequate because it
did not list service connection for migraine on the decision, nor did it
propose or indicate severance of service connection for migraine. R. at 2
. Thus, the Board held that the August 1959 RO decision was not final and
was not subject to CUE attack. R. at 3. The Board referred that matter
to the RO and it is not presently before the Court. Id.

II. ANALYSIS
A prior final RO decision must be reversed or revised where evidence
establishes clear and unmistakable error. See 38 U.S.C. 5109A; 38 C.F.R
. 3.105(a) (2005). CUE is established when the following conditions are
met: First, either (1) the correct facts contained in, or constructively
contained 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). Second, the
alleged error must be “undebatable,” not merely “a disagreement as to how
the facts were weighed or evaluated.” Russell v. Principi, 3 Vet.App. 310,
313-14 (1992) (en banc). Finally, the error must have “manifestly changed
the outcome” of the prior decision. Id. at 313-14, 320; see Bustos v.
West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting “
manifestly changed the outcome” language in Russell, supra). When the
Court reviews a determination that there was no CUE in a prior final
decision, the Court’s review is limited to determining whether the Board’s
conclusion in that regard is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” and whether it is
supported by an adequate “statement of reasons or bases.” 38 U.S.C.
7261(a)(3)(A), 7104(d)(1); see Eddy v. Brown, 9 Vet.App. 52, 57 (1996).
A. Clear and Unmistakable Error in the August 1944 Decision
The Board determined that the alleged failure by the RO to adjudicate
a claim for psychoneurosis could not be raised in the context of a request
for revision on the basis of CUE because only final decisions are subject
to revision for CUE. R. at 10-11; see 38 C.F.R. 3.105(a). The Board
stated that the failure to recognize the existence of a pending claim is
not a final decision subject to collateral attack in a request for
revision on the basis of CUE, relying on our holding in Norris v. West, 12
Vet.App. 413, 422 (1999) (determining that a claim reasonably raised to
the RO was not adjudicated and holding that unadjudicated matters were not
final for purposes of CUE attack). R. at 10-11. Thus, the Board held
that the 1944 RO’s failure to adjudicate a claim for psychoneurosis
reasonably raised in 1944 cannot be CUE because there is no final decision
on that claim subject to a CUE attack. Id. The Board then proceeded to
determine, outside of the context of CUE, that Mr. Richardson had not
reasonably raised a claim for psychoneurosis in 1944. R. at 11.
The Board stated that the requirement under the holding of the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) in Roberson v.
Principi, 251 F.3d 1378 (Fed. Cir. 2001) for VA to “‘fully and
sympathetically develop the veteran’s claim,’ and the consequences of VA’s
failure to do so, i.e., remand for adjudication of an old ‘implicit’ claim,
has been limited to the facts of that case[,]” citing our decisions in
Lane v. Principi, 16 Vet.App. 78, 86-87 (2002), and Simmons v. Principi,
17 Vet.App. 104, 110 (2003). R. at 10. It found that the duty to fully
and sympathetically develop a claim enunciated in Roberson only applies
when a service-connection claim for a particular disability is accompanied
by a contention that the disability causes unemployability. R. at 10.
The Board essentially limited Roberson to its facts by holding that
Roberson did not apply in cases in which the alleged prior reasonably
raised claim was for service connection rather than for a total disability
rating based on individual unemployability (TDIU). R. at 10. Thus, the
Board did not follow the holding in Roberson that “in order to develop a
claim ‘to its optimum’ as mandated by Hodge[ v. West, 155 F.3d 1356, 1362-
63], the VA must determine all potential claims raised by the evidence,
applying all relevant laws and regulations, regardless of whether the
claim is specifically labeled a claim for TDIU.” Roberson, 251 F.3d at
1384; see R. at 10.
Subsequent to the Board decision on appeal, the Federal Circuit
resolved any confusion as to whether Roberson applies only in claims for
TDIU. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (
holding that “VA has a duty to sympathetically read a veteran’s
allegations in all benefit claims”). The Federal Circuit held that, upon
receipt of a request for revision on the basis of CUE, “VA must give a
sympathetic reading to the veteran’s filings in that earlier proceeding to
determine the scope of the claims.” Id.; see also Moody v. Principi, 360
F.3d 1306, 1310 (Fed. Cir. 2004). VA must read all pro se submissions
sympathetically, including submissions in claims underlying a request for
revision on the basis of CUE, to “‘determine all potential claims raised
by the evidence, applying all relevant laws and regulations.'” Beverly v.
Nicholson, 19 Vet.App. 394, 405 (2005) (quoting Roberson, 251 F.3d at 1373
); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (
stating that “‘Roberson requires, with respect to all pro se pleadings,
that the VA give a sympathetic reading to the veteran’s filings'” (quoting
Szemraj, 357 F.3d at 1373)).
Mr. Richardson argues that, in denying his request for revision of
the August 1944 RO decision on the basis of CUE, the Board misinterpreted
and misapplied the rule of law articulated
in Roberson, which has since been further explained in Szemraj and Moody.
Appellant’s Brief (Br.) at 6-10. He argues that under Roberson, Szemraj,
and Moody, VA has a duty to fully and sympathetically read the pleadings
and evidence submitted in support of his prior claim before adjudicating
his request for revision on the basis of CUE. Id. at 9. He states that
it is apparent that the Board did not apply the principles articulated in
Roberson before denying his request for revision on the basis of CUE. Id.
at 6-7. He asserts that the matter should be remanded to the Board to
apply Roberson and read his 1944 submissions sympathetically to include a
claim for service connection for psychoneurosis based on his original 1944
application. Id. at 9-10.
The Secretary argues that the Board’s determination that there was no
CUE in the August 1944 RO decision should be affirmed because it was not
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, and was accompanied by an adequate statement of
reasons or bases. Secretary’s Br. at 9. The Secretary also argues that
the pendency of a claim for psychoneurosis is not properly addressed in a
request for revision on the basis of CUE. Id. at 11-12. In the
alternative, the Secretary asserts that, if Mr. Richardson’s challenge is
properly raised in a request for revision on the basis of CUE, then the
Court should find no CUE because Mr. Richardson is merely disagreeing with
the Board’s factfinding. Id. at 13.
We turn first to the Secretary’s argument that, under Norris, the
matter of a pending, unadjudicated claim is not properly addressed in a
request for revision on the basis of CUE. Id. at 11-12. The Court agrees
that revision of a prior decision on the basis of CUE can only be based on
a final decision by the RO or the Board. See 38 C.F.R. 3.105(a) (
providing for the revision of “[p]revious [RO] determinations which are
final and binding” on the basis of CUE); 38 C.F.R. 20.1400(a) (2005) (
providing for review to determine whether CUE “exists in a final Board
decision”); see also May v. Nicholson, 19 Vet.App. 310, 314-19 (2005) (
discussing the finality of Board decisions for the purpose of collateral
attack); Norris, 12 Vet.App. at 422 (holding that where there is no final
RO decision, there can be no CUE).
The Federal Circuit held recently in Andrews, supra, that, where the
Board has ruled on a CUE motion in which the appellant alleged a
reasonably raised claim and our Court “properly had jurisdiction to review
the Board decision,” the Federal Circuit had jurisdiction to review our
decision. Id., 421 F.3d at 1281. Nothing in the Andrews decision,
however, demonstrates an intent
to alter the rule that revision on the basis of CUE must be based upon a
final adjudication. In fact, Andrews points to the decisions in Roberson
and Szemraj, which stated that “‘apart from the requirement that a pro se
veteran’s pleadings be read sympathetically, our discussion in Roberson
did not change the well-established legal standard for determining the
existence of CUE in RO and [Board] decisions.'” Andrews, 421 F.3d at 1283 (
quoting Szemraj, 357 F.3d at 1373). It is clear that Andrews does not
alter fundamentally the indispensable prerequisite for revision on the
basis of CUE – a final RO or Board decision. See 38 C.F.R. 3.160(d) (
2005) (defining a “finally adjudicated claim” as a claim “which has been
allowed or disallowed by the agency of original jurisdiction, the action
having become final by the expiration of 1 year after the date of notice
of an award or disallowance, or by denial on appellate review, whichever
is the earlier”); 38 C.F.R. 20.1100, 20.1103, 20.1104 (2005) (providing
for the finality of Board decisions and underlying RO decisions); see also
May and Norris, both supra.
If any doubt existed as to whether a final decision is a necessary
prerequisite to a request for revision on the basis of CUE, the Federal
Circuit clarified the matter further in Bingham v. Nicholson, 421 F.3d
1346 (Fed. Cir. 2005), where it rejected the appellant’s assertion that “a
purported failure to evaluate a service connection claim under ‘all
applicable law’ – e.g., the various theories of entitlement authorized by
statute – is a legal error that precludes final adjudication of that claim
.” Id. at 1348. The Federal Circuit held that “finality attaches once a
claim for benefits is disallowed, not when a particular theory is rejected
.” Id. at 1348-49. Because the Bingham Court found a final decision on
the claim, if that decision was defective, it could only be corrected
through the statutory exceptions to the rule of finality (e.g., a request
for revision on the basis of CUE or a claim to reopen based on new and
material evidence). Regarding Andrews, the Bingham Court stated that “
VA’s failure [in Andrews] to consider all aspects of a claim does not
render its decision non-final but instead ‘is properly challenged through
a CUE motion.'” Bingham, 421 F.3d at 1349 (quoting Andrews, 421 F.3d at
1281).
In Moody, supra, the Federal Circuit addressed an appeal from this
Court’s affirmance of a Board denial of a request for revision of a prior
RO decision on the basis of CUE in which the appellant sought an earlier
effective date for a grant of secondary service connection. The appellant
asserted that the RO decision contained CUE because his prior submissions
reasonably raised an
informal claim for secondary service connection for a psychiatric
disorder that, if recognized, would support an earlier effective date.
360 F.3d at 1309. The Moody Court vacated this Court’s decision and
remanded the matter for the application of the holding in Roberson. In
interpreting Roberson, the Moody Court stated:
The question is whether the [Board], as required by Roberson,
sympathetically read Mr. Moody’s [prior filings], in determining
whether Mr. Moody made an informal claim for secondary service
connection for his psychiatric disorder. The interpretation of these
prior filings is essentially a factual inquiry, and it is beyond our
jurisdiction to make that determination.
Id. at 1310 (citing Lennox v. Principi, 353 F.3d 941, 946 (Fed. Cir. 2003),
and Cook v. Principi, 353 F.3d 937, 939 (Fed. Cir. 2003) (en banc)).
Thus, a claimant may assert that VA failed to adjudicate a reasonably
raised claim in the context of a request for revision of a prior decision
on the basis of CUE.[ 7Whether or not CUE is the exclusive way
to raise such a matter is an issue we need not address in order to decide
the matter before us.]7 See Bingham, Andrews, Moody, and Roberson,
all supra. When presented with such a request, VA must make two threshold
factual determinations. First, VA must apply the holding in Roberson and give a full and sympathetic reading to the pro se claimant’s prior submissions to determine whether such a claim was reasonably raised. If it is determined that a claim was reasonably raised, VA must then determine whether such a claim is pending or whether it was adjudicated as part of a final decision.[ 8A claim that has not been finally adjudicated is necessarily pending. See 38 C.F.R. 3.160(c) (2005) (defining “pending claim” as a claim “which has not been finally adjudicated”).]8 If such a reasonably raised claim remains pending, then there is no decision on that claim to revise on the basis of CUE; however, the claim must be adjudicated. See Roberson, 251 F.3d at 1384-85 (determining that the appellant’s earlier submissions raised a TDIU claim as a matter of law and remanding the matter for a determination of entitlement to TDIU). If VA determines that the claim was adjudicated, then the claimant may collaterally attack the resulting decision on the basis of CUE.

However, it is not for this Court to decide in the first
instance whether such a claim ever existed or, if so, whether such a
claim was ever adjudicated. See Moody, 360 F.3d at 1310.
In this case, although the Board determined that there “is no pending claim for service connection for psychoneurosis” based on Mr. Richardson’s statement in his 1944 application in conjunction with the ” May 1944 hospital summary that diagnosed simple adult maladjustment,” the Board reached this conclusion without first applying Roberson and giving a ” full and sympathetic reading” to Mr. Richardson’s 1944 submissions. R. at 10-11; see Roberson, 251 F.3d at 1384 (quoting Hodge, 155 F.3d at 1362).
After Szemraj, there is no question that the Board’s holding (based on our
then-extant jurisprudence) that Roberson applies only in TDIU claims was
incorrect. Because the Board failed to apply Roberson prior to addressing
whether Mr. Richardson reasonably raised a claim for psychoneurosis in
1944, this matter must be remanded to the Board to make the requisite
factual findings. See 38 U.S.C. 7104(a); Gutierrez v. Principi, 19 Vet.
App. 1, 10 (2004) (finding that remand is the appropriate remedy where
Board has failed to apply law correctly).
On remand, the Board (or the RO[ 9The Board must
determine, in light of Bernard v. Brown, whether it can apply Roberson in
the first instance, or whether it must remand the matter to the RO. See
Bernard, 4 Vet.App. 389, 394 (1993) (holding that when the Board addresses
questions not addressed by the RO, “it must consider whether the claimant
has been given adequate notice of the need to submit evidence or argument
on that question and an opportunity to submit such evidence and argument
and to address that question at a hearing, and, if not, whether the
claimant has been prejudiced thereby”).]9) first should give a full
and sympathetic reading of the appellant’s 1944 application to determine
whether there is a pending, unadjudicated claim for psychoneurosis. If,
after applying Roberson, it is determined that Mr. Richardson did not
reasonably raise a claim for psychoneurosis in his 1944 application, or
that such a claim was adjudicated, either as a separate and distinct claim
or as part of the August 1944 RO decision, then the Board should
adjudicate the request for revision on the basis of CUE. If the Board
determines that the 1944 application reasonably raises a claim for
psychoneurosis and that such a claim was not adjudicated, then the claim
remains pending and must be referred to the RO for a determination of Mr.
Richardson’s entitlement to service connection for psychoneurosis based on
the 1944 application because a claim on which there has been no final
decision cannot be addressed in a request for revision on the basis of CUE
.[ 10The matter would have to be remanded to the RO (if not
already remanded by the Board) for an initial decision on the claim. See
Godfrey v. Brown, 7 Vet.App. 398, 408 (1995) (holding “that the Board
did not err in referring the matter to the RO because the Board did not
have appellate jurisdiction to review the veteran’s claim of entitlement
to benefits under section 1110 . . . and lacked jurisdiction to adjudicate
the merits of that claim”).]10 See Norris, 12 Vet.App. at 422 (
noting the pendency of an
unadjudicated TDIU claim before the RO because the RO failed to
adjudicate a claim for TDIU as part of an informal claim for an increased
rating); see also Roberson, 251 F.3d at 1385 (remanding the matter of
eligibility for TDIU after determining that a TDIU claim was reasonably
raised by the veteran’s submissions).
B. Clear and Unmistakable Error in the May 1946 Decision
Mr. Richardson also argues that there was CUE in the May 1946 RO
decision, which reclassified his migraine as hypersensitive carotid sinus
with carotid sinus syndrome and increased his disability rating for
carotid sinus syndrome to 50%. R. at 254. The RO also reduced his
disability rating for migraine to 0%. Id. Mr. Richardson argues that
this decision unlawfully merged two separate disabilities into one
disability rating, and that the RO had no authority to do so. Appellant’s
Br. at 10-13. The Secretary asserts that the Board did have lawful
authority to merge the separate ratings. Secretary’s Br. at 16 (citing
1945 Schedule for Rating Disabilities, 1).
As a preliminary matter, as noted above, a Board decision addressing
a request for revision of a prior decision on the basis of CUE in a prior
final decision is generally reviewed under the “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law” standard.
38 U.S.C. 7261(a)(3)(A). If the appellant alleges that there was no
legal authority for the RO’s actions, then the Court is being asked to
address a question of law. All questions of law, even those raised in the
context of a request for revision on the basis of CUE, are reviewed under
the nondeferential de novo standard of review. See Kent v. Principi, 389
F.3d 1380, 1384 (Fed. Cir. 2004); Joyce v. Nicholson, 19 Vet.App. 36, 43 (
2005). Therefore, the determination of whether the RO had the authority
to adjust Mr. Richardson’s rating in 1946 is reviewed de novo.
The Board found that the RO had the authority to modify Mr.
Richardson’s ratings based on Paragraphs 1 and 13 of the 1945 Schedule for
Rating Disabilities [hereinafter, Paragraph 1 and Paragraph 13], based
upon the February 1946 VA examination that attributed his headaches to
carotid sinus syndrome and a May 1946 medical opinion that he did not
suffer from migraine. R. at 14; see R. at 243, 252. Paragraph 1 provides,
in pertinent part:
A veteran’s disability claim may require reratings in accordance with
changes in laws, changes in medical knowledge, and changes in
physical or mental condition, over a period of many years. It is
thus essential, both in the examination and in the evaluation of
disability, that each disability be viewed in relation to its whole
history. Different examiners, at different times, will not describe
the same disability in the same language; features of the disability
which must have persisted unchanged may be overlooked or a change for
the better or worse may not be accurately appreciated or described.
1945 Schedule for Rating Disabilities, 1; cf. 38 C.F.R. 4.1, 4.2 (
2005) (codified version of Paragraph 1). Paragraph 13 provides, in
pertinent part:
When any change in evaluation is to be made, the rating agency should
assure itself that there has been an actual change in the conditions,
for better or worse, and not merely a difference in thoroughness of
the examination or in use of descriptive terms. This will not, of
course, preclude the correction of erroneous ratings, nor will it
preclude giving the veteran the benefit of reasonable doubt as to
increase in severity.
1945 Schedule for Rating Disabilities, 13 (emphasis added); cf. 38 C.F.R
. 4.13 (2005) (codified version of Paragraph 13).
The Board held that Paragraphs 1 and 13 provided authority for the RO
decision in May 1946 to reclassify Mr. Richardson’s migraine as
hypersensitive carotid sinus with carotid sinus syndrome and increase his
rating to 50%. R. at 14. Specifically, the Board found that the RO
modified Mr. Richardson’s disability ratings based on the new medical
opinion that his diagnosis of migraine was “found to be in error.” R. at
252; see R. at 14. In addition, the Board determined that the RO had the
legal authority to reclassify his disabilities based on Paragraphs 1 and
13. R. at 14.
Mr. Richardson’s assertion that “[t]here was no change in the
description of [his] carotid sinus syndrome disability or his migraine
headaches disability” (Reply Br. at 7) is contrary to the evidence of
record (R. at 243, 245, 252), which indicates that there was, in fact, a
change in his diagnosis. This assertion illustrates that Mr. Richardson
is merely disagreeing with the manner in which the RO weighed the facts in
rendering its May 1946 decision. Mere disagreement with the way that the
RO evaluated the facts cannot be a basis for a finding of CUE. See
Russell, 3 Vet.App. at 313-14; cf. 38 C.F.R. 20.1403(d)(1) (2005) (a new
medical diagnosis that “corrects” an earlier diagnosis cannot be the basis
for a finding of CUE in a Board decision). Even assuming that Mr.
Richardson’s assertion that his condition did not change is correct (
because migraine was never causing his headaches), the RO had lawful
authority to modify his rating under Paragraph 13, which
allows for “the correction of erroneous ratings.” Thus, the Board’s
conclusion that the RO had lawful authority to adjust Mr. Richardson’s
disability ratings, based on Paragraphs 1 and 13, is correct.
In addition, Mr. Richardson asserts that the Board violated 38 U.S.C
. 7104(a) by failing to consider all applicable provisions of law.
Specifically, he argues that the matter of CUE in the May 1946 decision
should be remanded because the Board failed to discuss Esteban v. Brown, 6
Vet.App. 259 (1994), and Fanning v. Brown, 4 Vet.App. 225 (1993), which he
argues are “‘potentially applicable'” provisions of law. Appellant’s Br.
at 14 (citing Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991)). Our
holdings in Esteban and Fanning both stand for the general proposition
that all disabilities must be rated separately. See 38 C.F.R. 4.25(b) (
2005) (“Except as otherwise provided in [the rating] schedule, the
disabilities arising from a single disease entity . . . are to be rated
separately as are all other disabling conditions, if any.”). Mr.
Richardson is correct that the Board is required by 38 U.S.C. 7104(a) to
consider all applicable provisions of law. See Schafrath, 1 Vet.App. at
592-93.
However, his argument fails because the holdings in Esteban and
Fanning were not laws extant at the time of the May 1946 decision.
Therefore, it was not necessary for the Board to address the applicability
of those cases to Mr. Richardson’s request for revision on the basis of
CUE. See Damrel, 6 Vet.App. at 245-46; Russell, 3 Vet.App. at 313-14.
Moreover, the RO specifically sought a medical opinion clarifying whether
Mr. Richardson’s carotid sinus syndrome and migraine were separate
diseases (R. at 248), which stated that the diagnosis of migraine was
erroneous (R. at 252). Thus, the RO reduced his rating for migraine to 0%,
apparently determining that he did not suffer from migraine – a
determination that was consistent with the most recent medical opinions at
the time. R. at 254; see R. at 252.
Mr. Richardson also asserts that the Board’s statement of reasons or
bases regarding its finding that there was no CUE in the May 1946 RO
decision is inadequate. Appellant’s Br. at 15-19; see 38 U.S.C. 7104(d)(
1). This argument is without merit. He does not allege that the Board
failed to address fully any of his arguments regarding CUE in the May 1946
RO decision. Under the guise of reasons or bases, he merely reasserts the
same arguments that he makes regarding the merits of his request for
revision on the basis of CUE. Moreover, to the extent that he argues that
the Board should have addressed any RO decisions based on new medical
diagnoses rendered after May 1946,
we note that these subsequent decisions are based on evidence not of
record in May 1946, and do not establish CUE in the May 1946 RO decision.
See Russell, 3 Vet.App. at 314 (stating that a new medical diagnosis that “
corrects” an earlier error is not CUE); cf. 38 C.F.R. 20.1403(d)(1).
Therefore, the Board’s finding that there was no CUE in the May 1946
decision will be affirmed.

III. CONCLUSION
After consideration of Mr. Richardson’s and the Secretary’s pleadings,
and a review of the record, the Board’s September 5, 2003, decision that
there was no CUE in the August 1944 RO decision is VACATED and that matter
is REMANDED for further proceedings consistent with this decision. The
Board’s decision that there was no CUE in the May 1946 RO decision is
AFFIRMED.

KASOLD, Judge, concurring: I concur in the Court’s holding that Mr.
Richardson’s assertion that the 1944 RO decision failed to construe his
pleadings to raise a claim was properly brought as a request to revise
that decision based on CUE and that this matter must be remanded in light
of Andrews and for application of Roberson. I disagree with the
majority’s discussion as to how the Board or RO should proceed on remand.
I believe a finding on remand that the 1944 RO failed to construe Mr.
Andrews’ pleadings to raise a claim would constitute CUE in that decision,
with the manifestly changed outcome being the processing of the claim.
See Andrews v. Nicholson, 421 F.3d 1278, 1284 (Fed. Cir. 2005) (“[W]hen
the VA violates Roberson by failing to construe the veteran’s pleadings to
raise a claim, such claim is not considered unadjudicated but the error is
instead properly corrected through a CUE motion[.]”); see also Bingham v.
Nicholson, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (finding that the 1950
Board’s disallowance of claim was a final decision and that the
Secretary’s “failure to consider all aspects of a claim does not render a
decision non-final but instead ‘is properly challenged through a CUE
motion.'”) (citing Andrews, supra); Roberson v. Principi, 251 F.3d 1378,
1384 (Fed. Cir. 2001) (finding in the context of a request for revision on
the basis of CUE that a final RO decision failed to construe claimant’s
pleadings to include a TDIU claim and reversing); Nelson v. Principi, 18
Vet.App. 407, 409 (2004) (noting that Federal Circuit in Norton v.
Principi, 376 F.3d 1336, 1338-39 (2004), rejected arguments that
procedural violations in prior final decision could render that decision
nonfinal, or that RO decision remained
unadjudicated because the RO failed to sympathetically read his claim,
and noting Mr. Nelson had not argued CUE).
Moreover, on remand, because Mr. Richardson’s request is one for
revision based on CUE, the 1944 RO decision that is being attacked should
be reviewed in the context of the law, regulations, and standards
generally applied in requests for revision based on CUE and filed under 38
U.S.C. 5109A. See, e.g., Pierce v. Principi, 240 F.3d 1348, 1355 (2001) (
noting that final RO decisions are entitled to a presumption of validity);
Haines v. West, 154 F.3d 1298 (Fed. Cir.1998), cert. denied, 526 U.S. 1016 (
1999) (noting that CUE is the type of error “about which reasonable minds
could not differ”); Eddy v. Brown, 9 Vet.App. 52, 57 (1996) (finding that
CUE must be based on the record and the law that existed at the time of
the prior decision).
I also write to contrast Andrews with two situations not present here,
and to which the CUE analysis in Andrews is not applicable. First, the
CUE aspect of Andrews is inapplicable to cases in which an RO decision or
certain subsequent procedural rights were never provided with regard to a
claim for VA benefits or the pleadings of a claimant for VA benefits. In
such cases, the entire claim for benefits and all aspects of that claim
remain open – in an unadjudicated status – and the claim can be pursued in
a non-CUE context. See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (
allowing claimant pursuing claim to reopen to assert that his original
claim was never final because no Statement of the Case (SOC) had been
provided); Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (allowing claimant
pursuing an increased rating claim to assert that his claim was never
final because the Secretary failed to mail him a copy of the Board
decision pursuant to 38 U.S.C. 7104(e)); Kuo v. Derwinski, 2 Vet.App.
662, 666 (1992) (allowing claimant pursuing an increased rating claim to
assert that he was entitled to an earlier effective date because no SOC
had been provided); Ashley v. Derwinski, 2 Vet.App. 307, 311 (1992) (
finding claim in non-final status when the Secretary failed to mail a
claimant a copy of the Board decision pursuant to 38 U.S.C. 7104(e)(3));
see also Cook v. Principi, 318 F.3d 1334, 1340 (2002) (citing favorably
Tablazon, Hauck, Kuo, and Ashley, all supra, and finding a non-final claim
occurs when “the time for appealing either an RO or a Board decision did
not run where the [Secretary] failed to provide the veteran with
information or material critical to the appellate process”); Woznick v.
Nicholson, 19 Vet.App. 198, 201-02 (2005) (directing the Secretary to
issue an SOC as to the appellant’s claim).
Second, the CUE aspect of Andrews is not applicable to a failure of
the RO to adjudicate an informal claim for an increased disability rating
and associated benefits, including TDIU, that arises from VA medical exams
or hospitalization reports. See 38 C.F.R. 3.157(b)(1) (2005); Norris v.
West, 12 Vet.App. 413, 422 (1999) (determining that an informal claim for
a TDIU rating reasonably raised to the RO via VA medical records was not
adjudicated and thus the claim was not final for purposes of CUE attack);
see also Roberson (explicitly distinguishing the holding in Norris that an
informal claim for TDIU benefits arising from VA medical records had never
been adjudicated and therefore had not become final, with the
circumstances in Roberson, which involved a claim for a TDIU rating
presented by the veteran in his original claim for benefits that had not
been processed because the pleadings were not sympathetically read).
One notable distinction between the formal claim or pleadings of the
claimant and an informal claim based on medical records is that in the
former the claimant makes a specific request for benefits, is presumably
knowledgeable about what benefits he is seeking and the bases therefor,
and is presumably capable of appealing a decision that does not provide
all of the benefits sought. See, e.g., Roberson, 251 F.3d at 1383 (
stating that Roberson’s original medical disability claim was decided by
the RO and was the specific request for benefits for which Roberson sought
the highest rating possible). In the latter situation, however, the
entire claim and the benefits arising from that claim are generated by
medical reports and are initiated pursuant to regulation, without a
specific claim being filed by claimant. See Allin v. Brown, 10 Vet.App.
55, 58 (1997) (hospital report may constitute an informal claim for
increased benefits and assignment of an earlier effective date that
corresponds to date of hospital report); Servello v. Derwinski, 3 Vet.App.
196, 199 (1992) (stating that 3.157 (b) does not require the veteran to
identify the report as a claim or to identify the benefits sought).
In the instant case, the RO rendered a decision with regard to Mr.
Richardson’s claim for disability compensation. That decision became
final and, pursuant to Andrews, Mr. Richardson’s claim that the RO erred “
by failing to construe [his] pleadings to raise a claim, [ ] is not
considered unadjudicated but the error is instead properly corrected
through a CUE motion[.]” Andrews, supra.

MOORMAN, Judge, concurring: I write separately to further discuss the
state of the law following Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir.
2005), and specifically I conclude that filing a motion for revision of a
prior final RO or Board decision on the basis of CUE is not the only way
in which to raise the issue of an unadjudicated pending claim.
I conclude that the Federal Circuit in Andrews stated a relatively
narrow conclusion that was based on the particular fact pattern and
procedural posture of that case. In Andrews, VA raised for the first time
on appeal, as an argument to defeat the United States Court of Appeals for
the Federal Circuit’s (Federal Circuit) exercise of jurisdiction, the
possibility that a claim for TDIU was still pending and unadjudicated.
421 F.3d at 1281. However, in Andrews, the final decision by VA had been
rendered after the facts that gave rise to the possibility of a TDIU
rating were known and should have been considered by VA in determining
that aspect of the original claim, the assignment of the disability rating
. Id. at 1279-80; see Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir.
1998) (noting the five elements of a claim for service connection);
Fenderson v. West, 12 Vet.App. 119, 125 (1999). The Court opined that,
under these circumstances, “when the VA violates Roberson[ v. Principi,
251 F.3d 1378 (Fed. Cir. 2001)], by failing to construe the veteran’s
pleadings to raise a claim, such a claim is not considered unadjudicated
but the error is instead properly corrected through a CUE motion[.]”
Andrews, 421 F.3d at 1284. The presence of an underlying final decision
is key to this conclusion.
It is clear that there must be a finding that there is a final
decision as to a claim before a revision based on CUE will lie. See May v.
Nicholson, 19 Vet.App. 310, 314-19 (2005); Link v. West, 12 Vet.App. 39,
45 (1998); Best v. Brown, 10 Vet.App. 322, 325 (1997). And, if there is
such a final decision as to the claim in issue, only a motion for revision
on the basis of CUE or a claim to reopen for new and material evidence
will lie. Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (noting
the two statutory exceptions to the rule of finality). In discussing TDIU,
this presents a troubling problem. For years, VA and this Court’s
jurisprudence have discussed a “claim for TDIU.” The implication is that
TDIU is a separate claim. But, the Federal Circuit in Roberson and again
in Andrews clearly found that TDIU, reasonably raised before a final
decision on the underlying disability claim, is incorporated as an element
of that claim and is finally decided when the underlying disability claim
is rated. See Roberson, 251 F.3d at 1384 (noting evidence of TDIU
submitted at the time the application for VA disability compensation was
filed and holding that the subsequent CUE motion addressing the RO’s
failure to consider TDIU in the final RO decision was appropriate because “
Roberson’s claim has been finally decided by the RO”); see also Andrews,
421 F.3d at 1281. On the other hand, there are circumstances where TDIU
clearly can constitute a separate claim. One such circumstance is
illustrated in Norris v. West, 12 Vet.App. 413 (1999), where this Court
found that there were pending, unadjudicated claims for TDIU based on the
fact that no final decision had been made concerning the informal claims
for an increased rating (implicating TDIU) that were raised years after
the initial RO decision on the appellant’s claim for service connection.
The Federal Circuit, in Andrews, supra, saw no necessity to discuss Norris,
supra, because, in my view, it perceived no conflict with Norris, supra.
Therefore, I conclude that a final decision concerning a claim remains the
indispensable antecedent for a finding of CUE and provides the explanation
for the different treatment of TDIU issues in Andrews and Norris, both
supra.
The Federal Circuit further reinforced this conclusion in Bingham v.
Nicholson, 421 F.3d 1346, 1349 (Fed. Cir. 2005), in finding that a VA
failure to consider all possible theories, including presumptive theories,
for service connection does not preclude a decision on the claim for
service connection from being final; rather, such error results in an
incomplete, yet final, adjudication of the claim that can be subject to a
CUE attack. The Court concluded that, as to the appellant’s assertion
that failure to consider one theory of service connection constituted a
legal error that precluded finality, “the sole vehicle in which to
properly pursue that challenge is a CUE claim.” 421 F.3d at 1349. The
Federal Circuit then also noted the holding in Andrews that “VA’s failure
to consider all aspects of a claim does not render its decision non-final
but instead ‘is properly challenged through a CUE motion.'” Id.
Nothing in these decisions, however, leads me to conclude that every
disability listed by a veteran in a single application for VA disability
compensation is necessarily encompassed within a final decision by the RO
or Board that expressly adjudicates only one of the claimed disabilities.
One possible reading of Andrews is that a decision as to one of several
disability claims simultaneously filed, as part of the same application
for benefits, would constitute a final decision as to all. That reading
would lead to the conclusion that, following a final decision as to one of
the
claimed disabilities, the veteran’s subsequent request that VA process
the other claims that were part of the same application could be asserted
only in CUE motions, not as requests to process pending, unadjudicated
claims. I do not agree with such a reading. As the Court indicated in
Beverly v. Nicholson, 19 Vet.App. 394, 404-05 (2005), it “would be
illogical and unfair . . . to the appellant to [make him or her] wait
until the Board decision is final and then face the high burden of proving
CUE when any other error can be addressed immediately and more favorably
when raised in a timely manner.”

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