BVA9505463 DOCKET NO. 90-18 478 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether there was clear and unmistakable error in decisions of the Board of Veterans Appeals dated in June 1980 and December 1981. REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel REMAND The veteran served on active duty from June 1942 to April l946, and from September 5, 1950 to November 29, 1950. By decisions dated in June 1980 and December 1981, the Board of Veterans' Appeals (the Board) denied service connection for skin disease (claimed as skin and ear conditions) and for a skin disease claimed as psoriasis with psoriatic arthritis, respectively. In a letter dated in February 1989, the veteran sought to reopen his claim for service connection for dermatitis and arthritis "based on error." By letter dated in April 1989, the Regional Office (RO) notified the veteran that his claim was not reopened and remained in a disallowed status. By decision of December 1990, the Board held that the evidence submitted by the veteran was not new and material, and that the Board's decisions of June 1980 and December 1981 were final. The Board also found that an unappealed decision by the RO in March 1983 was also final. The veteran appealed to the United States Court of Veterans Appeals (the Court or Veterans Court) which affirmed the Board's decision with respect to the issue of whether new and material evidence had been submitted to reopen claims of entitlement to service connection for a chronic skin disability, including arthritis, and for arthritis, including psoriatic arthritis. In addition, the Court remanded the case to the Board to provide reasons and bases for its apparent determination that there was no clear and unmistakable error (CUE) in previous adjudications of the veteran's claim. In Smith v. Principi, 3 Vet.App. 378 (1992), the Court held, in a memorandum decision that the Board was required to adjudicate under 38 C.F.R. § 3.105(a), a claim that CUE was contained in a prior, otherwise final Board decision. This decision was appealed by the Department of Veterans Affairs to the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), which reversed the decision of the Veterans Court. Smith (William A.) v. Brown, 35 F.3d 1516 (Fed.Cir. 1994). The Federal Circuit Court held that otherwise final decisions of the Board are not subject to collateral review for CUE under 38 C.F.R. § 3.105(a), and that, RO's as trial-level adjudicators, cannot overturn the decisions of the Board as an appellate authority. Under the "law of the case" doctrine, the Board may not, on its own initiative, dismiss issues that have been remand by the Court. See Browder v. Brown, 5 Vet.App. 268 (1993). However, the doctrine of "law of the case" must yield to an intervening change of controlling law between the date of the first and the subsequent consideration of the question. Johnson v. Brown, 7 Vet.App. 25, 27 (1994) (Citing Amen v. City of Dearborn, 718 F.2d 789, 794 (6th Cir. 1983), cert. denied, 465 U.S. 1101, 104 S. Ct. 1596, 80 L. Ed 127 (1984)). Accordingly, although the Court instructed the Board to consider the issue of CUE under 38 C.F.R. 3.105(a), the Federal Circuit Court proscribed such determinations. Under the exception to the "law of the case" doctrine set forth in Johnson, 7 Vet.App. at 27, the Board must consider the fact that there has been a change in the controlling law and is not, accordingly, obligated to follow the original mandate of the Court. In addition to the above considerations, the Board also notes that in Glynn v. Brown, 6 Vet.App. 523 (1994), the Court held that in determining whether new and material evidence has been submitted to warrant reopening of a claim pursuant to 38 U.S.C.A. § 5108 (West 1991), consideration must be given to all the evidence submitted since the last final denial on the merits. Further, in Fugo v. Brown, 6 Vet.App. 40 (1993), the Court discussed what constitutes CUE. The Court stated: merely to aver that there was CUE in a case is not sufficient to raise the issue. Stated another way, while the magic incantation 'clear and unmistakable' need not be recited in haec verba, to recite it does not suffice, in and of itself, to raise the issue. It must always be remembered that CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. (Emphasis in original.) CUE requires that error, otherwise prejudicial, must appear undebatably. Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). Notwithstanding any of the above matters, the Board notes that the veteran's attorney has requested that the veteran be given the opportunity to testify at a hearing at the RO. Under the most recent codification of 38 U.S.C.A. § 7107(b) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 7, 108 Stat. 740, ___ (1994), "The Board shall decide any appeal only after affording the appellant an opportunity for a hearing." Therefore, this case is REMANDED to the RO for action as follows: The RO should provide the veteran with an opportunity to appear at a personal hearing at the RO. Following completion of the above, the RO should return the case to the Board for further appellate consideration. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).