15 Vet. App. 165 | Vet. App. | 2001
FARLEY, Judge, filed the opinion of the Court. KRAMER, Chief Judge, with whom STEINBERG, Judge, joined, filed a dissenting opinion.
The appellant appeals two decisions of the Board of Veterans’ Appeals (BVA or Board) dated December 23, 1999. In the first decision (Decision 1), the Board denied the appellant’s claim for an effective date earlier than January 2, 1997, for his service-connected disorder of the larynx, including laryngeal carcinoma. In the second decision (Decision 2), the Board found that neither the December 1985 BVA decision denying the appellant’s claim for service connection for a chronic disorder of the larynx nor the Board’s November 1987 decision denying his claim on reconsideration was the product of clear and unmistakable error (CUE). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will vacate and remand Decision 1 and affirm Decision 2.
I. BACKGROUND
The veteran served on active duty from February 1943 to November 1945 and from June 1953 to January 1955. Record (R.) at 28, 31. In April 1947, the veteran was awarded service connection for residuals of pneumonia and pleurisy. R. at 214. The regional office (RO) also granted service connection for psychoneurosis, anxiety reaction in July 1947. R. at 229-30. In September 1965, the RO denied the veteran’s claim for service connection for laryngitis. R. at 293.
In March 1982, the veteran sought to reopen his claim for laryngitis. R. at 295. The veteran claimed that he developed laryngitis, pneumonia, and severe malnutrition as a prisoner of war (POW), and that the combination of these conditions led to his carcinoma. Id. He submitted private medical records that reflected that he underwent a direct laryngoscopy for a carcinoma of the vocal cord in April 1977. R. at 298. A VA examination dated in May 1982 lists diagnoses of anxiety neurosis with depressive features, nephrolithia-sis, benign prostatic hypertrophy, and bilateral pleural thickening. R. at 313-15.
In September 1982, the RO denied service connection for postoperative laryngec-tomy as residuals of laryngitis and malnutrition secondary to POW status. R. at 330-31. In December 1982, the veteran provided sworn testimony at a personal hearing. R. at 339-47. He submitted medical records that established treatment for renal colic, leukoplakia and chronic inflammation of the larynx and true vocal cords, and hoarseness for one year. R. at 350-61, 363-66, 369, 374-75, 380-87, 392-406, 408-15, 417-24, 426-34. VA treatment records dated in August 1947 contain diagnoses of chronic pleurisy, residuals of pneumonia, hysteria, and foreign body reaction of the left hand. R. at 465. In April 1983, the RO granted service connection for malnutrition, rated at 0% disabling, but denied service connection for total laryngectomy, secondary to carcinoma of the larynx and chronic laryngitis. R. at 473-75.
In December 1983, the veteran provided sworn testimony at a hearing before the Board. R. at 494-516. He submitted ad
In July 1985, a physician from the Armed Forces Institute of Pathology opined that the veteran’s laryngeal malignancy had its origin within two years prior to his positive biopsy material from the larynx obtained in October 1966. R. at 584-85. In December 1985, the Board denied service connection for a chronic disability of the larynx. R. at 609-20. The Board found that the veteran’s laryngeal carcinoma was first manifested to a compensable degree many years after his separation from service and that this disability, including laryngeal carcinoma, was not shown to be causally related to a disease or injury of service origin. R. at 620. The Board noted that because the veteran’s condition was not one of the conditions afforded presumptive service connection in, or otherwise encompassed by, Public Law 97-37, that law was not applicable to the veteran’s claim. R. at 618.
In April 1986, the veteran provided sworn testimony at a hearing before the RO. R. at 622-33. In July 1986, the RO determined that new and material evidence had not been submitted to reopen the claim. R. at 635. In December 1986, the veteran provided sworn testimony in a hearing before the Board. R. at 658-73. In November 1987, the Board reconsidered its December 1985 decision and concluded that it contained no obvious error. R. at 696-97.
In 1989, the veteran submitted a letter to this Court, copied to VA, in an attempt to appeal this matter to this Court. R. at 705-06. The veteran was advised that the Court did not have jurisdiction to review his claim. R. at 709. Thereafter, the veteran continued to submit numerous letters to VA expressing his disagreement with the denial of his claim and seeking a proper hearing on his claim based upon Public Law 97-37.
In January 1997, the RO advised the veteran that a VA General Counsel opinion provided for the possibility of service connection secondary to smoking and that his condition might be related to smoking during service. R. at 828. In his response, the veteran stated that although he had never claimed that smoking was a contributing factor to his problems he realized it could have been; he also stated that he continued to believe that the primary cause of his condition was malnutrition. R. at 846. The veteran was given a VA POW protocol examination in December 1997. R. at 849-53. The examiner opined that it was more likely than not that malnutrition and smoking were the positive agents for the veteran’s laryngeal cancer. R. at 852. In March 1998, the RO granted
II. ANALYSIS
A. Decision 1: Earlier Effective Date
Section 5110(a) of 38 U.S.C. provides:
Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
See also Crawford v. Brown, 5 Vet.App. 33, 35 (1993). The effective date of a successful claim to reopen is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400; Spencer v. Brown, 4 Vet.App. 283, 293 (1993), aff'd, 17 F.3d 368 (Fed.Cir.1994), cert. denied, 513 U.S. 810, 115 S.Ct. 61, 130 L.Ed.2d 19 (1994); Flash v. Brown, 8 Vet.App. 332, 340 (1995). When a claim is denied as a result of “initial review or determination,” and the claimant fails to timely appeal that decision by filing a Notice of Disagreement within the one-year period prescribed in 38 U.S.C. § 7105(b)(1), that decision becomes final and the claim may not thereafter be reopened or allowed, except upon the submission of “new and material evidence.” 38 U.S.C. §§ 7104(b), 7105(c); see also Person v. Brown, 5 Vet.App. 449, 450 (1993) (failure to timely appeal an RO decision within one-year period renders the decision final); Spencer, 4 Vet.App. at 286-87. The Court reviews the issue of an earlier effective date under the “clearly erroneous” standard of review. Hanson v. Brown, 9 Vet.App. 29, 32 (1996); Scott v. Brown, 7 Vet.App. 184 (1994); Quarles v. Derwinski, 3 Vet.App. 129 (1992); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
The appellant’s award of service connection for a throat condition, and the effective date of that award, was based upon a reopening of his 1982 claim that became final with the Board’s 1987 decision on reconsideration. The Board noted that the appellant had submitted several letters to VA between 1987 and 1997, but that none of those communications could reasonably be construed as expressing an intent to reopen his claim. However, a review of the record reveals that all of the communication from the appellant to VA subsequent to the 1987 Board decision expressed his disagreement with the decision. In a 1989 letter to this Court, which was also sent to VA, the appellant specifically asked how he should proceed to obtain an objective hearing on his claim pursuant to Public Law 97-37. See R. at 705-06. The Board’s decision does not specifically address this letter, or any of the other letters sent by the appellant during that 10 year period, and fails to provide an adequate statement of its reasons and bases for not construing these communications as an attempt to reopen his claim. See 38 U.S.C. § 7104(d) (Board is required to provide a “written statement of the Board’s findings and conclusions, and the
1.
During the course of this appeal, the National Organization of Veterans Advocates (NOVA) filed a motion for leave to file an amicus brief. By order dated April 19, 2001, the Court granted NOVA’s motion and ordered the Secretary to file supplemental briefing regarding the impact, if any, of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) on Mr. Livesay’s claims. The appellant and amicus were given the opportunity to respond to the Secretary’s supplemental brief. NOVA filed a brief addressing not only the VCAA, but advancing additional arguments relating to the merits of the appellant’s claims. Annexed to NOVA’s brief was a statement by the appellant expressly adopting the arguments presented by the amicus as his own. Brief of Amicus Curiae, Appendix A.
In support of the appellant’s claim for an earlier effective date, amicus argues on his behalf that 38 C.F.R. § 3.400(q) is inconsistent with 38 U.S.C. § 5110(a) and therefore should be declared invalid. As noted above, § 5110(a) provides that “the effective date of an award based upon an original claim, a claim reopened after final adjudication, or a claim for increase of compensation ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of application therefor.” Section 3.400(q)(ii) of title 38 of the Code of Federal Regulations specifically provides that the effective date of an award based upon new and material evidence received after a final disallowance of the original claim is the “date of receipt of the new claim or [the] date entitlement arose, whichever is later.” Amicus argues that the phrase “application therefor” in § 5110(a) applies only to the filing of an application for an “original claim” (because, NOVA argues, a formal “application” is required to be filed only when filing an “original claim”). Therefore, in the view of NOVA, the effective date of claims “reopened after final adjudication” or “for increase of compensation ... shall be fixed in accordance with the facts found,” and is not subject to the qualifying language “but shall not be earlier than the date of application therefor.” We disagree.
“The starting point in interpreting a statute is its language, for ‘if the intent of Congress is clear, that is the end of the matter.’ ” Lewis v. Brown, 8 Vet.App. 287, 290 (1995) (quoting Gardner v. Brown, 5 F.3d 1456, 1458 (Fed.Cir.1993), aff'd, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994)). “Determining a statute’s plain meaning requires examining the specific language at issue and the overall structure of the statute.” Gardner, 1 Vet.App. at 586 (citing Bethesda Hospital Ass’n. v. Bowen, 485 U.S. 399, 403-05, 108 S.Ct. 1255, 99 L.Ed.2d 460 (1988)). This Court examined the specific language of 38 U.S.C. § 5110 in Wright v. Gober, and found that “the phrase ‘application therefor’ means the application which resulted
Even if we were to discern any type of ambiguity in the language of the statute, we find that the Secretary’s interpretation of the statute, as expressed in the regulation, is reasonable. The Secretary of Veterans Affairs has authority under 38 U.S.C. § 501(a) to “prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws.” Determining whether 38 C.F.R. § 3.400 violates the Secretary’s statutory authority requires examining the language of the statute and the interpretation adopted by the Secretary. See Gardner, 1 Vet.App. at 586-87. When Congress creates room for agency interpretation or expressly delegates policy making authority to the Secretary, the scope of judicial review is limited. Pauley v. BethEnergy Mines, 501 U.S. 680, 696, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991). The Court will sustain a regulation that is consistent with the language of the statute and is a plausible or reasonable interpretation of the law. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); but see U.S. v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 2170-71, 150 L.Ed.2d 292 (June 18, 2001) (Chevron deference only available when “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law” and “the agency interpretation claiming deference was promulgated in the exercise of that authority.”). Substantial deference is given to the statutory interpretation of the agency authorized to administer the statute. Chevron, 467 U.S. at 844, 104 S.Ct. 2778; Rust, 500 U.S. at 184, 111 S.Ct. 1759; see Tallman v. Brown, 7 Vet.App. 453, 463-65 (1995). Although we find no ambiguity in the plain language of 38 U.S.C. § 5110, even if such ambiguity exists, we find the Secretary’s interpretation, as expressed in 38 C.F.R. § 3.400(q) to be “consistent with the language of the statute and ... a ... reason
2.
Amicus also argues that the appellant might be entitled to an earlier effective date based upon what NOVA alleges to be a “grave procedural error” in the adjudication of Mr. Livesay’s 1982 claim. Because the appellant alleged in his 1982 claim that his laryngeal cancer was a result of his POW status, amicus believes that the RO was required, pursuant to 38 C.F.R. § 3.326(b), to provide the appellant with a medical examination that discussed the etiology of his condition and that this failure amounted to the type of “grave procedural error” described by U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Hayre v. West, 188 F.3d 1327 (Fed.Cir.1999) (VA’s failure to obtain service medical records specifically requested by a claimant without providing him notice explaining the deficiency is a procedural error of such gravity that would vitiate the finality of an RO decision). Because this argument has been raised for the first time here on appeal, and the appellant’s claim must be remanded for other reasons, the Court declines to consider this argument at this time. See Maggitt v. West, 202 F.3d 1370, 1378 (Fed.Cir.2000) (“Whether the doctrine of administrative exhaustion should be invoked ... entails a case-by-case analysis of the competing individual and institutional interests, including whether the [U.S. Court of Appeals for Veterans Claims] should use its authority to ‘remand the matter, as appropriate’ to the Board.”). The Court notes, however, that the Federal Circuit has recently cautioned that “Hayre was an extremely narrow decision” and that “[although the opinion contained some broad language, the holding was limited.” See Cook, supra (declining to extend Hayre’s “restricted ruling to cover an asserted breach of the duty [to assist] where [the appellant alleges] the medical examination he received was ... inadequate.”). The appellant is free to proffer his arguments to the Board on remand for consideration by the agency in the first instance. See Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order) (on remand, appellant free to submit additional evidence and argument); Quarles, 3 Vet.App. at 141 (on remand, Board must consider additional evidence and argument in assessing entitlement to benefit sought).
B. Decision 2: Clear and Unmistakable Error
Section 3.105(a) of title 38, Code of Federal Regulations, provides in pertinent part that “[previous determinations which are final and binding ... will be accepted as correct in the absence of [CUE]. Where evidence establishes such error, the prior decision will be reversed or amended.” See also 38 U.S.C. § 5109A. 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.
3 Vet.App. 310, 313 (1992) (en banc). “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.” Crippen v. Brown, 9 Vet.App. 412, 418 (1996) (quoting Russell, 3 Vet.App. at 313). The claimant must provide some degree of
The two BVA decisions the appellant has alleged are the product of CUE denied his claim for service connection because he had presented no evidence that his chronic disorder of the larynx and cancer of the larynx were related to his service-connected malnutrition. Although the appellant correctly asserted throughout his claim that Public Law 97-37 (codified at 38 U.S.C. § 1112(b), previously codified at 38 U.S.C. § 312) provided for presumptive service connection for his claim for residuals of malnutrition, he continually failed to recognize that he was still required to present evidence that his cancer of the larynx was related to malnutrition. The relationship between malnutrition and cancer is a determination requiring medical expertise and the appellant’s opinion, as a lay person, was insufficient to establish that fact. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Medical evidence of a relationship between the veteran’s malnutrition and his cancer was not made a part of the record until December 1997 when the veteran was given a VA POW protocol examination. See R. at 852 (“The etiology of the cancer of the larynx is likely to be moderated by [the veteran’s] severe malnutrition and starvation while in the service.”).
The appellant’s contention that the 1985 and 1987 BVA decisions were the product of CUE is based upon his belief that his condition in 1982, when he first submitted his claim to reopen, was'the same as it was in January 1997, the effective date of his service connection award. It may very well be true that the veteran was just as disabled in 1982; however, the evidence necessary to support his claim was not of record at that time. Because the appellant’s 1998 award of service connection (made effective as of January 1997) was based upon evidence that did not become part of the record until after January 1997, the Board found that the appellant’s argument that his condition was the same in 1982 was insufficient to establish CUE.
The appellant also argued that the 1985 and 1987 decisions were the product of CUE because VA failed to examine his throat when he was hospitalized by VA within two years of his separation from service. The Board found that this was essentially an argument that VA failed to fulfill its duty to assist, but that the veteran had no claim pending at the time of his hospitalization that would have triggered VA’s duty to assist. The Board also noted that a purported failure by VA to fulfill its duty to assist does not constitute CUE. The Board pointed out that the veteran was given an examination at the time, but that the examination reports do not indicate that the veteran had complained of a throat condition.
The appellant also argued that the Board did not consider or properly apply Public Law 97-37 in its 1985 and 1987 decisions. R. at 10. The Board found that because the 1985 BVA decision expressly considered Public Law 97-37, but deter-
The Court finds that the Board’s decision is adequately supported by the record and cannot be said to be “arbitrary, capricious, an abuse of discretion, or not in accordance with the law.” See Russell, supra. The appellant presented no evidence or argument to the Board or to this Court that either the correct facts, as they were known at the time of the 1985 and 1987 BVA decisions, were not before the Board, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Id. As noted above, evidence that the veteran’s throat condition was related to malnutrition was not before the Board in 1985 or 1987; thus, it cannot be said that the Board’s failure to award service connection based upon Public Law 97-37 was clearly and unmistakably erroneous.
1.
The Court notes that the Board cited to 38 C.F.R. § 20.1409(c) in denying the appellant’s CUE motions with respect to both the 1985 and 1987 BVA decisions. Section 20.1404(b), title 38, Code of Federal Regulations requires that a CUE motion set forth clearly and specifically the alleged clear and unmistakable error. At the time the BVA decisions on appeal were issued, that regulation also provided that “[m]otions which fail to comply with the requirements set forth in this paragraph shall be denied.” 38 C.F.R. § 20.1404(b) (1999). Section 20.1409(c) provided that “[o]nce there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of [CUE].” 38 C.F.R. § 20.1409(c) (1999). In Disabled American Veterans (DAV) v. Gober, 234 F.3d 682 (Fed.Cir.2000), the Federal Circuit held that § 20.1404(b), in the manner that it operates with § 20.1409(c), is invalid because it was contradictory with the requirement that the Board decide a CUE motion on the merits. The Federal Circuit found that under the old regulations, if the Board denied a veteran’s CUE motion because it failed to meet the specific pleading requirements of 38 C.F.R. § 20.1404(b) and Russell, supra, that veteran might be precluded by 38 C.F.R. § 20.1409(c) from filing a new, properly pled CUE motion as to the same decision. To the extent the regulations did so, the Federal Circuit found them to be invalid. 234 F.3d at 698. In response, the Secretary has proposed revised regulations and enacted an interim rule that states that motions that fail under 38 C.F.R. § 20.1404(b) and Russell, shall now be “dismissed without prejudice to refiling under this subpart.” 66 F.R. 35902 (July 10, 2001). New § 20.1409(b) provides that a dismissal without prejudice is not a final decision of the Board. Id.
In the BVA decision denying Mr. Live-say’s CUE motion, the Board stated that the veteran had “not presented a viable claim of CUE in the December 1985 Board decision” and that “the 1987 Board decision cannot as a matter of law have contained CUE.” The Board then “denied” the motion and, citing to 38 C.F.R. § 20.1409(c), stated that those decisions were “final.” Although the Board did use language indicating that Mr. Livesay’s motion was being denied pursuant to 38
2.
Amicus argues on the appellant’s behalf that VA’s failure to provide the appellant with a “comprehensive examination to ascertain the etiology of his condition” in 1982 when he first filed a claim based upon his POW status, in addition to being a “grave procedural error” (see discussion supra) also amounted to CUE. Brief of Amicus Curiae at 21. At the outset, the Court notes reservations about the propriety of considering this new specific allegation of CUE advanced at this stage of the litigation not by the appellant, but by amicus. See Maggitt, 202 F.3d at 1377 (“While the [U.S. Court of Appeals for Veterans Claims] may hear legal arguments raised for the first time with regard to a claim that is properly before the court, it is not compelled to do so in every instance.”); Fugo, 6 Vet.App. at 44 (“If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is.”). However, even assuming it is proper to consider this argument belatedly raised by amicus, we find it to be without merit.
Amicus argues that the RO was required, pursuant to 38 C.F.R. § 3.326(b), to provide the appellant with a medical examination that discussed the etiology of his condition. Section 3.326(b) provides, in pertinent part, that “monetary benefits to a former prisoner of war will not be denied unless the claimant has been offered a complete physical examination.” Neither that regulation nor the manual provision cited by amicus require that a physical examination given pursuant to 38 C.F.R. § 3.326(b) must include an opinion as to the etiology of the POW’s condition, and amicus has cited no authority demonstrating what a “complete physical examination” must include. In any event, the Court acknowledges that special consideration must be given to claims based upon a veteran’s POW status. See, e.g., 38 C.F.R. § 3.304(e). However, even if we were to accept amicus’ argument that § 3.326(b) does require that a POW examination include an opinion as to etiology, the appellant (or amicus) has not demonstrated that the examination was, in fact, inadequate or that but for VA’s alleged failure to provide such an examination, the result would have been “manifestly different,” which is essential for a successful allegation of CUE. Fugo, 6 Vet.App. at 44.
In June 1982, the appellant underwent a VA medical examination at the VA Medical Center in Long Beach, California. R. at 312-25. An ear, nose, and throat consultation report noted that the appellant had undergone a laryngoscopy in 1977 with radical neck dissection and reconstructive work for natural speech. The physician noted that the appellant had excellent speech and that his mouth and neck were free of tumors. R. at 312. A pulmonary examination and chest x-ray were also performed because the appellant had complained of shortness of breath upon exertion since his 1977 surgery. R. at 315-17, 321. In June 1985, after additional private medical records regarding the appellant’s throat condition and laryngeal carcinoma were obtained, the BVA requested an opinion from the Armed Forces Institute of Pathology (AFIP) “as to the time of onset or probable duration of the [appellant’s] malignancy or malignancies.” R. at 580-81. The AFIP reviewed the appellant’s claims folder, including private and VA medical records, as well as related histology tissue slides revealing his card-
The December 1997 VA examination report that resulted in Mr. Livesay’s service-connection award opined that not only malnutrition, but smoking as well, were “positive agents” for the veteran’s cancer. R. at 852. No allegation as to whether smoking was a factor in the development of the veteran’s cancer was made or considered prior to 1997. Accordingly, the appellant cannot demonstrate that had he received what NOVA would accept as an adequate examination in 1982 the outcome would have been different. See Fugo, supra; see also Cook, supra (to establish CUE, it is incumbent on the veteran to establish entitlement to benefits as of the date of the claim being challenged as CUE); Bustos v. West, 179 F.3d at 1381, cert. denied, 528 U.S. 967, 120 S.Ct. 405, 145 L.Ed.2d 315 (1999) (a veteran “must show that an outcome-determinative error occurred”).
Based upon the foregoing, the Court finds that there was no clear and unmistakable error in either the 1985 or the 1987 BVA decisions. Accordingly, Decision 2 is affirmed.
3.
At oral argument, a question was raised as to whether the appellant’s CUE motion was inextricably intertwined with his earlier effective date claim such that the CUE motion should be remanded simply because the earlier effective date claim is being remanded. In Smith v. Gober, the Federal Circuit held that the underlying facts of the appellant’s claim to reopen based upon new and material evidence and his CUE motion regarding the same disability were “so intimately connected ... that, in the interests of judicial economy and avoidance of piecemeal litigation, they should be appealed together.” 236 F.3d 1370, 1372 (Fed.Cir.2001). The Federal Circuit therefore concluded that this Court’s affirmance of the Board’s denial of his CUE motion would not become final for purposes of appeal until the Court’s remand of his new and material evidence claim was final and dismissed his appeal without prejudice. Id. at 1372. We have considered Smith and hold that it neither requires nor permits a remand of the appellant’s allegations of CUE.
The Federal Circuit’s opinion in Smith noted that an analysis of the appellant’s new and material evidence claim and the CUE matter in that case would involve a careful evaluation of the evidence of record at the time of the decision being challenged as CUE to determine whether that decision was the product of CUE based upon the evidence of record at the time and to determine if the evidence submitted since that time was “new and material.” In contrast, this matter is factually similar to the Federal Circuit’s earlier opinion in Hayre, supra, in which the court affirmed this Court’s affirmance of the Board’s denial of the appellant’s CUE motion, yet remanded his earlier effective date claim. Mr. Livesay’s earlier effective date claim is not dependent upon evidence of record at the time of the 1985 and 1987 BVA decisions. Rather, the only critical evidence will be the submissions the appellant made subsequent to those decisions. Thus, we conclude that these CUE matters are not inextricably intertwined with Mr. Livesay’s earlier effective date claim and therefore need not be remanded. See Hayre, supra.
The VCAA was enacted on November 9, 2000. Among other things, the VCAA eliminated the well-grounded-claim requirement and modified the Secretary’s duties to notify and assist claimants. See generally VCAA, §§ 3, 4, 7; see also Holliday v. Principi, 14 Vet.App. 280, 284-86 (2001) (holding all sections of VCAA are retroactive). In Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991), this Court held that where a statute or regulation changes during the appellate process, the version most favorable to the claimant shall apply. It is not the function of this Court to determine in the first instance which version of the law is most favorable to the claimant. See Baker v. West, 11 Vet.App. 163 (1998); Dudnick v. Brown, 10 Vet.App. 79 (1997).
The VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims. In Holliday, supra, this Court held that “all provisions of the VCAA are potentially applicable to claims pending on the date of the VCAA’s enactment” and that “this Court may not determine in the first instance the specific applicability of the VCAA.” 14 Vet.App. at 286, 290. However, the Court also stated that we “cannot” “determine in the first instance who’s in and who’s out under the ... VCAA.” Id. at 290. The quoted language in Holliday was not intended to stand for the proposition that the VCAA requires remand of all pending claims and that this Court may not decide that the VCAA could not affect a pending matter. In Smith v. Gober, 14 Vet.App. 227, 231-32 (2000), the Court held that the VCAA was not applicable to a matter of statutory interpretation. The VCAA is indeed potentially applicable to all pending claims and, where it applies to a particular claim, prudence dictates that the Secretary and not this Court decide in the first instance what impact the VCAA has upon that claim. However, in those cases such as Smith, where we conclude that the VCAA can have no application as a matter of law, this Court not only may, but must so hold. Although the VCAA, with its expanded duties, is potentially applicable to a great number of claims, we find that the VCAA is not applicable to the appellant’s allegations of CUE in the 1985 and 1987 BVA decisions.
“CUE claims are not conventional ‘appeals,’ but rather are requests for revisions of previous decision^].” DAV, 234 F.3d at 694 (citing Haines v. West, 154 F.3d 1298, 1300 (Fed.Cir.1998)). The movant bears the burden of presenting to the RO specific allegations of error that would amount to CUE, and that error must be based upon the record as it existed at the time of the decision the claimant is alleging was the product of CUE. Fugo, 6 Vet.App. at 43; see also Pierce v. Principi, 240 F.3d 1348 (Fed.Cir.2001) (affirming, without mention of the VCAA, this Court’s interpretation of 38 U.S.C. § 5109A that CUE must be based upon the evidence of record at the time of the decision).
A detailed analysis of the organization of title 38, United States Code, demonstrates that CUE is fundamentally different from any other kind of action in the VA adjudicative process. Title 38 is subdivided into six parts. Part II (“GENERAL BENEFITS”) and part III (“READJUSTED AND RELATED BENEFITS”) govern the benefits available under the laws administered by the Secretary. CUE is governed by the provisions of part IV (“GENERAL ADMINISTRATIVE PROVISIONS”) and part V (“BOARDS, ADMINISTRATIONS, AND SERVICES”) of title 38. CUE provides a procedural device that allows for a final RO or Board decision to be reversed or revised. A liti
Section 2 of the VCAA, titled “Clarification of Definition of ‘Claimant’ for Purposes of Veterans Claims” adds a new section 5100 to title 31 of the United States Code. New § 5100 defines the term “claimant,” for purposes of chapter 51 of title 38, as “any individual applying for, or submitting a claim for, any benefit under the laws administered by the Secretary.” (Emphasis added). Section 3 of the VCAA reaffirms, clarifies, and arguably expands the Secretary’s duties to notify and assist “claimants” in the development of their claims. VCAA § 3 (to be codified at 38 U.S.C. §§ 5102, 5103, and 5103A). However, because a “request[ ] for revision[ ] of [a] previous decision” on the basis of CUE is not an “application” or “claim for[ ] any benefit under the laws administered by the Secretary” for purposes of chapter 51 of title 38. See DAV, supra. Thus, a “claimant” as defined by 38 U.S.C. § 5100 includes a person applying for or seeking benefits under part II or III of title 38, but cannot encompass a person seeking a revision of a final decision based upon CUE pursuant sections 5109A and 7111.
The regulations promulgated by the Secretary regarding allegations of CUE in final BVA decisions further support this distinction. See generally 38 C.F.R. §§ 20.1400-20.1411 (enacting Rules MOO-1411 for the Board’s adjudication of motions to revise Board decisions on the basis of CUE), see also DAV, supra (holding that, with one exception, Rules 1400-1411 are valid). These rules make clear that several of the claimant-friendly provisions of title 38 generally applicable to the adjudication of VA benefits claims do not apply to CUE motions. First, Rule 1402 states that motions filed under that subpart “are not subject to the provisions of part 19 of [title 38] or this part 20 which relate to the processing and disposition of appeals.” 38 C.F.R. § 20.1402. The Rules also make clear that “the benefit of the doubt rule” does not apply to the Board’s decision on a CUE motion. 38 C.F.R. § 20.1411(a). Board decisions on CUE motions are not subject to reopening on the grounds of new and material evidence. 38 C.F.R. § 20.1411(b). Moreover, the Rules expressly state that “[a] motion under this subpart is not an application for benefits subject to any duty associated tuith 38 U.S.C. 5103(a)” and that “[a] motion under this subpart is not a claim for benefits subject to the requirements and duties associated tuith 38 U.S.C. 5107(a).” 38 C.F.R. § 20.1411(c)-(d). These rules were enacted before the VCAA and apply to 38 U.S.C. §§ 5103 and 5107 as they existed prior to the VCAA. See DAV, 234 F.3d at 704 (“a CUE claim is unique and, thus, should not be governed by statutes such as 38 U.S.C. §§ 5103(a) and 5107(a) which apply to regular claims for benefits.”). However, there is nothing in the text or the legislative history of VCAA to indicate that VA’s duties to assist and notify are now, for the first time, applicable to CUE motions.
III. CONCLUSION
Upon consideration of the foregoing, the December 23, 1999, decision of the Board of Veterans Appeals denying an effective date earlier than January 2, 1997, for the
On remand, the appellant is free to submit additional evidence and argument necessary to the resolution of his claim, including any argument pertaining to the newly enacted VCAA. See Kutscherousky, supra. The Board shall proceed expeditiously. See Veterans’ Benefits Improvement Act, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” of claims remanded by the Board or Court); Drosky v. Brown, 10 Vet.App. 251 (1997). If the circumstances warrant, the Board is authorized and obligated to remand the claim to the VA RO for further development. See 38 C.F.R. § 19.9(a) (2000); Littke v. Derwinski, 1 Vet.App. 90 (1990).