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Williams Jr. v. Principi
USAVC 02-0764 – STEINBERG, Judge: Veteran Luther Williams, Jr. (the appellant), pro se, seeks review of a May 28, 2002, Board of Veterans’ Appeals (Board or BVA) decision that (1) denied Department of Veterans Affairs (VA) service connection for a dental disability and (2) determined that he had failed to file a timely Substantive Appeal both as to a June 6, 1979, VA regional office (RO) decision and as to an October 23, 1979, VARO decision. Record ( R.) at 1-17. The appellant filed an informal brief, and the Secretary filed a brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. 7252(a) and 7266(a). Single-judge disposition is appropriate here because the case is one whose outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will affirm in part and reverse in part the Board decision and will remand certain matters for further development and readjudication.
Seebeek v. Principi
USAVC 02-0069 – this action may not be cited as precedent.
FARLEY, Judge: On appeal to this Court is a January 11, 2002, decision of the Board of Veterans’ Appeals (BVA or Board) that, inter alia, determined that (1) an August 26, 1960, regional office (RO) decision severing service connection for nephritis was not the product of clear and unmistakable error (CUE), and (2) the August 1960 RO decision was final. Both parties filed briefs, and the appellant filed a reply brief. Thereafter, the appellant filed a motion to expedite the proceedings based on his advanced age and failing health. Pursuant to Rule 47 of the Court’s Rules of Practice and Procedure, the Court may order the expediting of a matter with respect to procedural steps in the proceedings before it, such as the time allotted for briefing. In this case, the briefing had been completed when the motion was filed. In any event, the Court denies the motion to expedite as moot.
On appeal, the appellant does not challenge the Board’s determination that the August 1960 RO decision was not the product of CUE. Accordingly, the Court deems that issue abandoned. Ford v. Gober, 10 Vet.App. 531, 535 ( 1997); Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993) (holding a claim abandoned where an appellant did not include the claim in his arguments and requests for relief). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. 7252(a). Single- judge disposition is appropriate when, as here, the issue is of relative simplicity and the outcome is
not reasonably debatable. See Frankel v. Derwinski, 1 Vet. App. 23, 25- 26 (1990). For the reasons that follow, the Court will reverse the Board’s decision with respect to the finality of the August 1960 RO decision and will vacate the January 11, 2002, Board decision and remand the matter for further adjudication consistent with this decision.
Masors v. Derwinski
(Submitted February 20, 1991/Decided February 7, 1992)
UNITED STATES COURT OF VETERANS APPEALS No.90-540
Whether evidence submitted to reopen previously disallowed claim is “New and Material Evidence ” is question of law which Court of Veterans Appeals reviews de novo. 38 U.S.C.A. §§ 7104(b), 7261(a)(1).
Gilbert v. Derwinski
Argued July 25, 1990 Decided October 12, 1990)
UNITED STATES COURT OF VETERANS APPEALS No.89-53
In practical terms, under “clearly erroneous” rule, Court of Veterans Appeals is not permitted to substitute its judgment for that of the Board of Veterans’ Appeals on issues of material fact; if there is plausible basis in record for factual determinations of Board, even if Court might not have reached same factual determinations, it cannot overturn them.
Holliday v. Principi
UNITED STATES COURT OF VETERANS APPEALS No.99-1788
The Court of Appeals for Veterans Claims may not determine in the first instance the applicability of the Veterans Claims Assistance Act (VCAA) to the specific claims of a particular appellant. 38 U.S.C.A. § 5107.
Dudnick v. Brown
UNITED STATES COURT OF VETERANS APPEALS No. 96-327
Only Board of Veterans’ Appeals (BVA), not Court of Veterans Appeals, could consider whether amendments to portion of rating schedule pertaining to mental disorders, which went into effect after veteran filed his appeal, were more favorable to veteran; amendments had to be applied to extent they were more favorable. 38 C.F.R. §§ 4.13, 4.16; 38 C.F.R. § 4.125-4.132 (1996).
Grivois v. Brown
Court of Veterans Appeals review jurisdictional issue as to whether veteran’s claims are well-grounded de novo.. 38 U.S.C.A. § 5107(a).
Gilbert v. Derwinski
Where findings of material fact by Board of Veterans’ Appeals (BVA) are properly supported and reasoned, and Board concludes that fair preponderance of evidence weighs against claim of veteran, it would not be error for Board to deny veteran benefit of doubt; such denial would not be subject to reversal under arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law standard because it was premised upon rational basis and supported by appropriate and relevant factors which were properly articulated. 38 U.S.C.A. § 4061(a)(4).
Lovelace v. Derwinski
Conclusions of law by the Board of Veterans’ Appeals (BVA) are entitled to no judicial deference by Court of Veterans Appeals; however, findings of fact made by Board are entitled to judicial deference and are to be set aside only if clearly erroneous. 38 U.S.C.A. § 4061.
Colvin v. Derwinski
Where Board of Veterans’ Appeals (BVA) declined to accept expert opinions that veteran’s multiple sclerosis was service connected, it was necessary for Board to state its reasons for doing so and to point to medical basis other than Board’s own unsubstantiated opinion which supported decision.
Robinette v. Brown
Question of whether claim is well grounded is question of law subject to de novo. adjudication by Court of Veterans Appeals. 38 U.S.C.A. § 5107(a).
Russell v. Principi
The Court of Veterans Appeals review of a Board of Veterans’ Appeals (BVA) decision that has considered possible “clear and unmistakable error” in previous adjudications over which the court does not have jurisdiction, is necessarily limited to determining whether the BVA decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; the issue must have been adjudicated below. 38 U.S.C.A. §§ 7104(d)(1), 7261(a)(3)(A); Pensions, Bonuses, and Veterans’ Relief Regulations, § 3.105(a), 38 U.S.C.A.App.
Lovelace v. Derwinski
Determination by Board of Veterans’ Appeals (BVA) of veteran’s degree of impairment was one of fact entitled to judicial deference; Board’s task was to sift through evidence, analyze and weigh it, and apply it to legal principles to effect that severely impaired veterans are entitled to 70% disability while those considerably impaired are entitled to 50%.
Grottveit v. Brown
Court of Veterans Appeals’ determination of whether veteran’s claim is well- grounded is a matter of law. 38 U.S.C.A. § 5107(a).
Quarles v. Derwinski
Board of Veterans’ Appeals (BVA) decision as to the effective date when a veteran’s symptoms became ascertainable did not provide adequate reasons or bases for the implicit rejection of potential dates posed by the evidence of record, thus requiring remand to the Board; medical evidence created the possibility of several different dates of ascertainability. 38 U.S.C.A. § 7104(d)(1).
Eddy v. Brown
On appeal of Board of Veterans’ Appeals’ (BVA) determination that there was no clear and unmistakable error (CUE) in prior final regional office (RO) decision, Court of Veterans Appeals’ review is limited to determining whether BVA’s conclusion is arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law and whether it is supported by adequate statement of reasons or bases. 38 U.S.C.A. §§ 7104(d)(1), 7261(a)(3)(A).
Hatlestad v. Derwinski
In order to enable claimant to understand decision and reasons behind it, as well as to assist in judicial review, Board of Veterans’ Appeals (BVA) is required by statute to include in its decisions written statement of its findings and conclusions and reasons or bases for such findings and conclusions. 38 U.S.C.A. § 4004(d)(1).
Butts v. Brown
Court of Veterans Appeals may set aside Board of Veterans’ Appeals’ selection of diagnostic code for rating decision only if selection in particular case is arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law; selection involves application of law to facts rather than clear question of law or review of factual determination. 38 U.S.C.A. § 7261(a)(3)(A).
Hensley v. West
Where Board of Veterans Appeals (BVA) erred in its application of regulatory presumption that certain disorders are service-connected when the veteran was exposed to mustard gas in service, Court of Appeals for Veterans Claims should not have reviewed de novo. BVA’s determination that veteran’s claim for service connection of his heart disease was not well grounded, or engaged in its own fact finding, but was required to remand case to BVA for further development and application of correct law; since ground given by BVA for its decision led it to erroneous conclusion and consequently to insufficient factual development of the record, its decision could not be affirmed. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.316(a).
Scott v. Brown
In determining whether finding of fact by Board of Veterans’ Appeals (BVA) is clearly erroneous, court is not permitted to substitute its judgment for that of BVA on issues of material fact; if there is plausible basis in record for BVA’s factual determinations, court cannot overturn them. 38 U.S.C.A. § 7261(a)(4).
Hanson v. Brown
Board of Veterans’ Appeals’ (BVA) determination of proper effective date is a finding of fact, and findings of fact are reviewed by Court of Veterans Appeals under a clearly erroneous standard.
Bailey v. West
Ability of Court of Veterans Appeals to equitably toll a particular statutory time limit and thereby exercise jurisdiction over a late-filed notice of appeal was question of statutory interpretation which could be reviewed by Court of Appeals for the Federal Circuit. 38 U.S.C.A. §§ 7266(a), 7292(c, d).
Frankel v. Derwinski
Standard of review to be employed by the Court of Veterans Appeals when reviewing decisions of the Board of Veterans’ Appeals (BVA) is determined by whether issues presented on appeal were questions of law or fact; if, upon consideration of record, Court cannot say factual findings of Board were clearly erroneous, or that there is error of law, Court is obligated to affirm Board’s decision, with due regard given to rule of prejudicial error. 38 U.S.C.A. § 4061(a), (a)(4), (b).
Swann v. Brown
Finding concerning service connection or no service connection is finding of fact which Court of Veterans Appeals reviews only to determine whether it is clearly erroneous.
Smallwood v. Brown
Determination of whether veteran is entitled to increase in schedular disability rating is question of fact subject to clearly erroneous standard of review; under this standard, Court of Veterans Appeals can overturn Board of Veterans’ Appeals (BVA) decision only when there is no plausible basis in record for decision. 38 U.S.C.A. § 7261(a)(4).
Vda de Landicho v. Brown
In appeals of Board of Veterans’ Appeals (BVA) decisions, Court of Veterans Appeals reviews fact determinations made by BVA and does not engage in de novo. fact-finding. 38 U.S.C.A. § 7261(a)(4), (c).
Stegman v. Derwinski
Determination regarding when and how disorder was incurred or aggravated is a finding of fact subject to review under clearly erroneous standard; Court of Veterans Appeals may not reject conclusion of Board of Veterans’ Appeals (BVA) if it is supported by plausible basis in record.
Butts v. Brown
Court of Veterans Appeals reviews Board of Veterans’ Appeals’ findings of fact regarding new claims under clearly erroneous standard of review. 38 U.S.C.A. § 7261(a)(4).
Ohland v. Derwinski
In order to enable claimant to understand Board of Veterans’ Appeals (BVA) decision and reasons behind it, as well as to assist in judicial review, Board is required by statute to include in its decisions written statement of Board’s findings and conclusions and reasons or bases for those findings and conclusions. 38 U.S.C.A. § 4004(d)(1).
Hodge v. West
In general, the Court of Veterans Appeals defers to a regulatory construction of a statute that is adopted by the Secretary of Veterans Affairs.
Elkins v. West
New-and-material-evidence determinations will generally be reviewed under a deferential “clearly erroneous” standard; however, circumstances of an individual case, may call from time to time for the application of a de novo. or “arbitrary and capricious” standard of review. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
Green v. Brown
Even if Board of Veterans’ Appeals (BVA) might have erred in requiring new and material evidence to support surviving spouse’s claim for dependency and indemnity compensation (DIC) benefits, error was not prejudicial; in no event could she have used 1975 enactment to arrive at effective date of 1973, as required for DIC award based on veteran’s continuous total disability rating for 10 years immediately preceding his death. 38 U.S.C.A. § 7261(b).
Damrel v. Brown
Board of Veterans’ Appeals (BVA) failure to address claim that 1983 regional office decision denying total disability based on unemployability was inconsistent with evidence that was before regional office at time was harmless error, as applicant for dependency and indemnity compensation (DIC) benefits would not be entitled to benefits even if clear and unmistakable error was present because veteran would not have been rated totally disabled for ten or more years prior to his death, but only for five years. 38 U.S.C.A. §§ 1318, 7261(b).
Carbino v. Gober
Determination of whether service connection claim is well grounded is conclusion of law subject to de novo. review by Court of Veterans Appeals. 38 U.S.C.A. § 7261(a)(1).
Horowitz v. Brown
Court of Veterans Appeals reviews findings of Board of Veterans’ Appeals (BVA) under “clearly erroneous” standard of review. 38 U.S.C.A. § 7261(a)(4).
See publication Words and Phrases for other judicial constructions and definitions.
Harrison v. Principi
In determining whether finding is clearly erroneous, Court of Veterans Appeals cannot substitute its judgment for that of Board of Veterans’ Appeals (BVA) on issues of material fact, and cannot overturn factual determinations if there is plausible basis for them in the record. 38 U.S.C.A. § 7261(a)(4).
Smith v. Derwinski
Decision by Board of Veterans’ Appeals (BVA) failed to contain statement of reasons or bases to support its assertion that evidence received since initial rating decision did not serve to alter factual basis in earlier decision and thus remand was required to enable Board to clarify whether it found that there was New relating to claim that veteran’s spondylolisthesis was service connected, and if it did, to enable Board to properly consider all evidence, both old and new.
McGinnis v. Brown
Whether evidence submitted to reopen previously disallowed claim is new and material is question of law which Court of Veterans Appeals reviews de novo.. 38 U.S.C.A. § 5108.
Thomas v. Brown
Consolidated appeals on issue of whether Secretary of Veterans Affairs was required to allow cases to proceed at administrative level by issuing a statement of the case (SOC) were moot, where appellants had both received the SOCs which Department of Veterans Affairs regional offices (RO) had previously refused to issue. 38 U.S.C.A. § 7104.
Stewart v. Brown
Determination of effective date for disability compensation is finding of fact which Court of Veterans Appeals reviews under clearly erroneous standard of review. 38 U.S.C.A. § 7261(a)(4).
Bagby v. Derwinski
Veteran who appealed determination by the Board of Veterans’ Appeals that presumption of soundness was rebutted was entitled to de novo. review by Court of Veterans Appeals; while underlying determination such as that Board could have determined as factual matter that veteran was treated for ulcer condition prior to service might have been factual, issue of whether those facts were sufficient to justify statutory requirement that clear and unmistakable evidence be shown to rebut presumption of soundness is legal determination subject to de novo. review.
Webster v. Derwinski
Because Court of Veterans Appeals is court of review, it is not appropriate for it to make de novo. finding, based on evidence, of veteran’s degree of impairment due to posttraumatic stress disorder (PTSD); however, it is Court’s obligation to require Board of Veterans’ Appeals (BVA) to provide its reasons or bases for any material, factual or legal determination, especially for one that appears on its face to be inconsistent with much of relevant evidence in record.
Gilbert v. Derwinski
It is not function of Court of Veterans Appeals to decide whether veteran was injured or whether any such injury occurred in or was aggravated during military service; rather, it is function of Court to decide whether such factual determinations made by Board of Veterans’ Appeals in particular case constituted clear error.
Horowitz v. Brown
Under “clearly erroneous” standard of review, if there is plausible basis in record for factual determinations of Board of Veterans’ Appeals (BVA), Court of Veterans Appeals cannot overturn them, even if court might not have reached same factual determinations.
Francisco v. Brown
Finding as to degree of impairment resulting from a disability is a question of fact.
Johnson v. Brown
In determining whether finding is clearly erroneous, Court of Veterans Appeals is not permitted to substitute its judgment for that of Board of Veterans’ Appeals (BVA) on issues of material fact; if there is plausible basis in record for factual determinations of BVA, Court of Veterans Appeals cannot overturn them.
Solomon v. Brown
Question of degree of impairment resulting from a disability, or appropriate rating under Department of Veterans’ Affairs (VA) schedule, is a question of fact which Court of Veterans’ Appeals reviews under clearly erroneous standard.
Smith v. Derwinski
Debt waiver decisions, and review of such decisions by the Board of Veterans’ Appeals are subject to review by the Court of Veterans Appeals to determine whether statutory standard was applied in accordance with regulatory guidance or whether decision was made in arbitrary or capricious manner. 38 U.S.C.A. § 4061(a)(3)(A).
Murphy v. Derwinski
Board of Veterans’ Affairs (BVA) decisions must include reasons or bases for medical conclusions, even those opined by Board physician; mere statement of opinion, without more, does not provide opportunity for veteran to explore bases for reconsideration or for Court of Veterans Appeals to review Board’s decision on the record as required by statute. 38 U.S.C.A. § 4052(b).
Gilbert v. Derwinski
Court of Veterans Appeals will not be called upon to review cases in which the Board of Veterans’ Appeals (BVA) found that veteran prevailed by fair preponderance of evidence or determined if there was approximate balance of positive or negative evidence such that veteran was entitled to benefit of doubt as matter of law; cases which will come before Court will be those in which Board concluded that fair preponderance of evidence was against claim and veteran was not entitled to benefit of doubt.
Hampton v. Gober
Determination by Board of Veterans’ Appeals (BVA) regarding whether service connection claim is well grounded is subject to de novo. review by Court of Veterans Appeals.
Irby v. Brown
In determining whether finding of Board of Veterans’ Appeals (BVA) is clearly erroneous, Court of Veterans Appeals is not permitted to substitute its own judgment of BVA on issues of material fact; if there is plausible basis in record for factual determination that BVA, court cannot overturn them.
Winters v. West
New-and-material-evidence determinations in context of claim reopenings will generally be reviewed under a deferential “clearly erroneous” standard, but de novo review will be employed where the Secretary of Veterans Affairs may have erred in his legal interpretation of the reopening statute or regulation; review under the “arbitrary, capricious, or abuse of discretion” standard is more suitable in those situations where the Secretary’s determination involved the exercise of judgment, discretion, and an abuse thereof. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.
Zink v. Brown
Claimant bears burden of establishing that fact-finding by Board of Veterans’ Appeals (BVA) was clearly erroneous.
Beausoleil v. Brown
Whether evidence is new and material, as required to reopen previously and finally disallowed claim, is conclusion of law which Court of Veterans Appeals reviews de novo.. 38 U.S.C.A. § 7261(a)(1).
Cox v. Brown
Claim for increased rating is a new claim, for which Court of Veterans Appeals reviews findings of fact by Board of Veterans’ Appeals (BVA) under “clearly erroneous” standard of review. 38 U.S.C.A. § 7261(a)(4).
Jordan v. Brown
If Board of Veterans’ Appeals (BVA) articulates satisfactory explanation for its decision, including rational connection between facts found and choice made, Court of Veterans Appeals must affirm.
Russo v. Brown
Under clearly erroneous standard of review of factual findings, if there is plausible basis in record for factual determinations of the Board of Veterans’ Appeals (BVA), even if Court of Veterans Appeals might not have reached same factual determinations, they cannot be overturned.
Francisco v. Brown
Court of Veterans Appeals reviews Board of Veterans’ Appeals’ (BVA) factual findings under clearly erroneous standard. 38 U.S.C.A. § 7261(a)(4).
Johnson v. Brown
Degree of disability on claim of service connected veteran benefits under rating code is finding of fact subject to clearly erroneous standard of review.
Yabut v. Brown
Reliance by Board of Veterans’ Appeals (BVA) on medical treatise was not harmless error where veteran, a former prisoner of war (POW) had presented plausible argument that he was prejudiced by BVA’s error in failing to notify him of its intent to rely upon medical treatise in denying his claim for service connection for helminthiasis.
Stewart v. Brown
Under clearly erroneous standard of review, if there is plausible basis in record for factual determinations of Board of Veterans’ Appeals (BVA), even if Court of Veterans Appeals might not have reached same factual determinations, the Court cannot overturn them. 38 U.S.C.A. § 7261(a)(4).
Molloy v. Brown
Whether evidence is new and material to support reopening claim is reviewed on de novo. basis.
Beausoleil v. Brown
Determination whether claim is well-grounded is conclusion of law subject to de novo review by Court of Veterans Appeals. 38 U.S.C.A. § 7261(a)(1).
Francisco v. Brown
Court of Veterans Appeals must set aside a finding of material fact as clearly erroneous when the Court is left with the definite and firm conviction that a mistake has been committed, and Court may reach that conclusion only if there is no plausible basis in the record for Board of Veterans’ Appeals’ (BVA) findings at issue. 38 U.S.C.A. § 7261(a)(4).
Beyrle v. Brown
Whether a document is notice of disagreement (NOD) is a question of law for Court of Veterans Appeals to determine de novo.. 38 U.S.C.A. §§ 7105, 7261(a)(1).
Sanchez v. Derwinski
While it was error for Board of Veterans’ Appeals (BVA) to treat evidence which was essentially cumulative of prior claims as new and material and warranting reopening of previously disallowed service connection for hearing loss, any error in Board’s rationale was harmless since it did not change resolution of claim that there was no service connection for bilateral hearing loss. 38 U.S.C.A. § 5108.
Archer v. Principi
Court of Veterans Appeals has jurisdiction to review Board of Veterans’ Appeals’ (BVA) decisions on claims that clear and unmistakable error had been committed in previous ratings determinations, but such review is limited by jurisdictional statutes; court cannot conduct plenary review of merits of original decision but is limited to determining whether Board’s subsequent decision which has considered possible clear and unmistakable error in previous adjudications, the one on appeal before court, was arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law. 38 U.S.C.A. § 7261(a)(3)(A).
Owens v. Brown
It is responsibility of Board of Veterans’ Appeals (BVA), not Court of Veterans Appeals, to assess credibility and weight to be given evidence.
Wood v. Derwinski
Finding of service connection is finding of fact to be reviewed by Court of Veterans Appeals under clear error standard.
Maggitt v. West
United States Court of Appeals for Veterans Claims has jurisdiction to hear arguments presented to it in the first instance, provided it otherwise has jurisdiction over the veteran’s claim. 38 U.S.C.A. § 7252(a).
Smith v. Derwinski
Determination of credibility is function for the Board of Veterans’ Appeals (BVA).
Cox v. Brown
Under “clearly erroneous” standard of review, Court of Veterans Appeals cannot overturn factual determinations of Board of Veterans’ Appeals (BVA) if there is plausible basis in the record for them, even if court might not have reached same factual determinations.
See publication Words and Phrases for other judicial constructions and definitions.
Yabut v. Brown
Whether a claim is well grounded is a matter of law which Court of Veterans Appeals reviews de novo..
Link v. West
On appeal of a Board of Veterans Appeals (BVA) determination that there was no clear and unmistakable error (CUE) in a prior final BVA or regional office (RO) decision, review by the Court of Veterans Appeals is limited to determining whether the Board’s conclusion is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,and whether the Board provided an adequate statement of reasons or bases for its denial of CUE. 38 U.S.C.A. § 7261(a)(3)(A).
Hensley v. West
On issue of whether claim for veterans benefits is well grounded, the ultimate conclusion is a question of law, but that conclusion rests on factual matters the determination of which by the agency fact-finders is entitled on review to substantial deference. 38 U.S.C.A. §§ 5107(a), 7261(a).
Harrison v. Principi
Determination whether veteran’s lung cancer was caused by radiation is finding of fact that Court of Veterans Appeals must affirm unless that determination is found to be “clearly erroneous.” 38 U.S.C.A. § 7261(a)(4).
Crippen v. Brown
On appeal of Board of Veterans’ Appeals (BVA) determination that there was no clear and unmistakable error (CUE) in a prior final decision of Department of Veterans Affairs (VA) regional office (RO), Court of Veterans Appeals’ review is limited to determining whether BVA’s conclusion is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and whether it is supported by adequate statement of reasons or bases. 38 U.S.C.A. §§ 7104(d)(1), 7261(a)(3)(A).
Owens v. Brown
Assessments by Board of Veterans’ Appeals (BVA) as to credibility and weight to be given evidence will be overturned by Court of Veterans Appeals only if they are clearly erroneous.
Best v. Brown
Board of Veterans’ Appeals’ (BVA’s) denial of claimant’s clear and unmistakable error (CUE) claim before final decision on underlying claim was harmless error.
Edenfield v. Brown
Non-prejudicial error results where the Department of Veterans Affairs (VA) has erroneously found a claim well-grounded but then fails to comply with fair process requirements.
Mason v. Brown
On appeal of Board of Veterans’ Appeals’ (BVA) determination that there was no clear and unmistakable error in prior final regional office decision, Court of Veterans Appeals’ review is limited to determining whether BVA’s decision on clear and unmistakable error issue was arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law and whether it is supported by adequate statement of reasons or bases. 38 U.S.C.A. § 7104(d)(1).
Mense v. Derwinski
Question of whether veteran’s low back disorder was incurred in or aggravated by service is question of fact resolved by Board of Veterans’ Appeals (BVA); Court of Veterans Appeals may set aside such findings only if clearly erroneous. 38 U.S.C.A. § 4061(a)(4).
Maggitt v. West
United States Court of Appeals for Veterans Claims had jurisdiction to consider constitutional and statutory arguments raised by veteran in challenging denial of his request to reopen his claims for service connection for asthma, knee condition, and skin disorder, as well as his request for remand to Board of Veterans’ Appeals based on new law, even though arguments themselves were not raised before Board, given that Court of Appeals for Veterans Claims had jurisdiction over veteran’s request for benefits. 38 U.S.C.A. § 7252(a).
Cullen v. Brown
Arbitrary and capricious scope of review of decision on waiver of recovery of overpayment is narrow, and court is not to substitute its judgment for that of agency; nevertheless, agency must examine relevant data and articulate satisfactory explanation for its action, including rational connection between facts found and choice made. 38 U.S.C.A. § 5302(a).
Akins v. Derwinski
“Clear and unmistakable evidence” describes burden of proof, at fact-finding level, necessary to overcome presumption whereas “clear and unmistakable error” describes legal test employed in reviewing previous decision; put definitionally, “clear and unmistakable evidence” describes persuasiveness of evidence, while “clear and unmistakable error” requires that error, otherwise prejudicial, must appear undebatably.
See publication Words and Phrases for other judicial constructions and definitions.
Jones v. Derwinski
Decision by the Board of Veterans’ Appeals (BVA) was deficient in that it failed to contain statement of reasons or bases to support its assertion that “[t]he evidence submitted since prior decision of Board * * * does not establish that chronic urinary/bladder disability was present during service or for several years following separation therefrom” and thus, remand was required to enable Board to provide statement of reasons or bases. 38 U.S.C.A. § 4004(d)(1).
Colvin v. Derwinski
Finding by Board of Veterans’ Affairs (BVA) that veteran’s evidence was not material is question of law entitled to no judicial deference by Court of Veterans’ Appeals. 38 U.S.C.A. § 4061.
Hensley v. West
On factual matters, the findings of the Board of Veterans Appeals (BVA) may be overturned by the Court of Appeals for Veterans Claims only if they are clearly erroneous. 38 U.S.C.A. § 7261(a)(4).
Mindenhall v. Brown
Under clearly erroneous standard of review, if there is a plausible basis in record for factual determinations of Board of Veterans’ Appeals (BVA), even if the Court of Veterans Appeals might not have reached the same factual determinations, the Court cannot overturn them. 38 U.S.C.A. § 7261(a)(4).
Browder v. Brown
Under the doctrine of “law of the case,” questions settled on former appeal of same case are no longer open for review.
See publication Words and Phrases for other judicial constructions and definitions.
Spencer v. Brown
Determination as to whether evidence submitted on a previously and finally denied claim is new and material is conclusion of law which Court of Veterans Appeals reviews de novo.. 38 U.S.C.A. § 7261(a)(1).
Phillips v. Brown
Review by Court of Veterans Appeals of determination as to whether claim of clear and unmistakable error (CUE) has been presented is under nondeferential de novo standard. 38 U.S.C.A. § 7261(a); 38 C.F.R. § 3.105(a).
Dean v. Brown
Because veteran failed to submit well-grounded claim and thus was not entitled to receive adjudication of his claim on merits, any Board of Veterans’ Appeals’ Thurber errors in failing to give him notice and opportunity to respond to medical treatise evidence were not prejudicial. 38 U.S.C.A. § 7261(b).
Suttmann v. Brown
Authority of Secretary of Veterans Affairs to provide equitable relief when he determines that Department of Veterans Affairs’ (VA) benefits have not been provided by reason of administrative error on part of government or any of its employees is committed to sole discretion of Secretary and, consequently, Board of Veterans’ Appeals (BVA) and Court of Veterans Appeals are without jurisdiction to review Secretary’s exercise of that discretion. 38 U.S.C.A. § 503(a).
Willis v. Derwinski
In determining whether finding of the Board of Veterans’ Appeals (BVA) is clearly erroneous, Court of Veterans Appeals is not permitted to substitute its judgment for that of Board on issues of material fact; if there is plausible basis in record for factual determinations of Board, Court cannot overturn them.
Tucker v. West
Normally, the determination of an effective date for entitlement for benefits is a finding of fact that the Court of Veterans Appeals reviews under the “clearly erroneous” standard. 38 U.S.C.A. § 7261(a)(4).
Johnston v. Brown
Degree of disability under rating code for service-connected condition is finding of fact subject to “clearly erroneous” standard of review.
Turner v. Brown
In determining whether finding is clearly erroneous, Court of Veterans Appeals cannot substitute its own judgment for that of Board of Veterans’ Appeals (BVA) on issues of material fact; if there is plausible basis in record for factual determinations of BVA, court cannot overturn them.
Yabut v. Brown
Any error by Board of Veterans’ Appeals (BVA) in treating former prisoner of war (POW) claims as well grounded and applying wrong standard in purporting to deny claim was harmless error where former POW had failed to submit well- grounded claims. 38 U.S.C.A. § 7261(b).
Moray v. Brown
Determination whether evidence submitted to reopen veteran’s previously disallowed claim is new and material is question of law which Court of Veterans Appeals reviews de novo.. 38 U.S.C.A. § 5108.
Schleis v. Principi
The Court of Veterans Appeals is a court of law and its jurisdiction is defined by a statute which precludes consideration of claims which have been the subject of final denials; only the Secretary of Veterans Affairs is permitted by statute to take equitable considerations into account in reviewing claims for administrative error. 38 U.S.C.A. § 503(a).
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