UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                           No. 99-1769

                                  BRUCE E. LANE, APPELLANT ,

                                                V.


                                   ANTHONY J. PRINCIPI,
                         SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                         On Appeal from the Board of Veterans' Appeals


                                   (Decided April 16, 2002 )

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

        Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Joan E.
Moriarty, Deputy Assistant General Counsel; and Patricia Trujillo, all of Washington, D.C., were
on the brief for the appellee.

       Before KRAMER, Chief Judge, and FARLEY and STEINBERG, Judges.

       FARLEY, Judge: On appeal is a July 26, 1999, decision of the Board of Veterans' Appeals
(BVA or Board) that found that a July 1997 BVA decision, denying basic eligibility for VA benefits
on the basis of the veteran's character of discharge, was not 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 affirm the July 1999 decision of the Board.


                                      I. BACKGROUND
       The veteran served on active duty in the U.S. Army from September 1967 to February 1971.
Record (R.) at 2, 20. His service included a tour of duty in Vietnam from March 1968 to March
1969, for which he was awarded a number of medals, including the Bronze Star Medal, the Vietnam
Service Medal with one Bronze Service Star, the Vietnam Gallantry Cross with Palm Leaf, the
National Defense Service Medal, and the Combat Infantryman Badge. R. at 3, 20, 98. His service
medical records reflect that he sought treatment for sleeplessness in October 1969 and March 1970
and was given Librium as a sleep aid. R. at 55, 60. During his January 1971 separation examination,
the veteran responded "yes" when asked whether he had experienced "frequent trouble sleeping," had
"frequent or terrifying nightmares," had "attempted suicide," and had "coughed up blood." R. at 71.
At the same time, he denied having "nervous trouble of any sort" or "any drug or narcotic habit."
Id. His February 3, 1971, DD214 Discharge Form reflects that he had been absent without leave
(AWOL) for 392 days, including one period of 190 consecutive days, and that he was discharged
"under other than honorable conditions." R. at 20.
       In an October 1980 VA regional office (RO) "Administrative Decision," the veteran's
discharge was "considered to have been issued under conditions [that] preclude payment of VA
benefits." R. 111-12. The appellant contested that decision, and, in a July 21, 1997, decision, after
VA had apparently misplaced the appeal for many years, the Board determined that the character of
the veteran's discharge barred his entitlement to VA benefits. R. at 333-43. The record before the
1997 Board included evidence that pursuant to Presidential Proclamation No. 4313, in May 1976 the
appellant had been issued a clemency discharge, and that in February 1977, the Army Discharge
Review Board had upgraded his discharge to "under honorable conditions." R. at 337; see also
R. at 86, 89, 98. The Board also had statements from the appellant describing in detail several
traumatic incidents that had occurred in Vietnam and his testimony that while in Vietnam, he had
become dependent upon drugs, including heroin, to escape the fear of combat, and that upon his
return to the United States, he began going AWOL because he could not cope with army life. R. at
338. The record included private medical records showing treatment for a psychiatric disability,
including a 1992 diagnosis of post-traumatic stress disorder. Id.
       In the 1997 decision, the Board cited 38 U.S.C. § 5303(a) as a bar to benefits under laws
administered by VA to a person discharged under conditions other than honorable on the basis of
a continuous AWOL period of at least 180 days, unless such person demonstrated that compelling
circumstances warranted the prolonged absence. R. at 339. The 1997 Board decision then
paraphrased the controlling regulations, stating:
       In determining whether compelling circumstances warranted the prolonged
       unauthorized absence, the length and character of service exclusive of the period of
       the unauthorized absence will be considered. This period should generally be of such
       quality and length that it can be characterized as honest, faithful and meritorious and


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       of benefit to the nation. Additionally, consideration may be given to reasons offered
       by the claimant including family emergencies or obligations. These reasons should
       be evaluated in terms of the person's age, cultural background, educational level and
       judgmental maturity. Consideration should be given to how the situation appeared
       to the person himself or herself and not how the adjudicator might have reacted.
       Hardship or suffering incurred during overseas service, or as a result of combat
       wounds [or] other service-incurred or aggravated disability, is to be carefully and
       sympathetically considered in evaluating the person's state of mind at the time the
       prolonged AWOL period began.
R. at 340 (citing 38 C.F.R. § 3.12(c)(6)(i-iii) (1996)). Among the factors that the Board said it
considered were the appellant's statements that he was only 18 years old when he enlisted; that he
was told he would be an administrative clerk but was instead placed in the infantry; that he was given
drugs by his fellow soldiers and became dependant upon those drugs to escape his fears of combat;
that he had experienced many traumatic incidents while serving in Vietnam; and that his superiors
treated him like "dirt." R. at 338. The BVA found that the veteran's quality and length of service
were honest, faithful, meritorious, and of benefit to the nation, but the BVA concluded, "in light of
the totality of the evidence of record," that there did not exist compelling circumstances to warrant
the prolonged AWOL periods. R. at 341-42. To be more specific, the 1997 Board decision stated:
       [The appellant's] combat service certainly would have exposed him to some hardship
       and/or suffering during overseas service. However, the objective evidence of record,
       contemporaneous with the appellant's return from overseas duty[,] fails to document
       the presence of any circumstances [that] support his assertions regarding drug
       dependence, difficulty with superiors, or an inability to fulfill his duties as assigned
       due to being in a "state of confusion." There are no records of hospitalization or
       counseling reports to confirm treatment for any psychiatric symptomatology or
       substance abuse either upon return from overseas or during the time periods in which
       the appellant was absent from his unit. In fact, the first evidence of record to suggest
       either the presence of a psychiatric disorder or substance abuse [is dated] 1992, many
       years after service discharge, and there is no indication within these records to
       establish the presence of an acquired psychiatric disorder or a substance abuse
       disorder in 1970 or 1971.
R. at 341.
       In the July 1999 BVA decision here on appeal, the Board found that its 1997 decision did not
contain CUE. R. at 17. The Board rejected the appellant's two arguments as to why the 1997 BVA
had committed CUE: (1) Its failure to apply 38 C.F.R. § 3.12(e) (2001) (regarding discharge issued
through board for correction of records); and (2) its misapplication of 38 C.F.R. § 3.12(c)(6)(i) and

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(ii) (factors to consider in determining whether compelling circumstances warranted prolonged
AWOL). R. at 12-17. Because in his instant appeal to the Court the appellant does not take issue
with the Board's determination with respect to 38 C.F.R. § 3.12(e), any appeal as to that part of the
1999 Board decision is deemed abandoned. See Ford v. Gober, 

, 535-36 (1997);
Bucklinger v. Brown, 

, 436 (1993). With respect to 38 C.F.R. § 3.12(c)(6)(i) and (ii),
the appellant argued to the 1999 Board that the 1997 Board erred "when it failed to give proper
weight and consideration to the underlying reason for [his] unauthorized absences" in accordance
with the regulation. R. at 9, 417-418. The appellant argued that the 1997 Board did not carefully
and sympathetically consider, "from his point of view," the factors that influenced him to go AWOL,
such as his youth and immaturity, his problems with drugs and alcohol, and his subsequent
development of psychiatric disabilities. R. at 10, 417-421 (emphasis added). Further, the appellant
stated that the 1997 Board's reference to no "objective evidence" to document the veteran's alleged
reasons for going AWOL improperly imposed a more difficult standard of proof than that required
by the regulation. Id.
       In its decision finding no CUE in the 1997 Board decision, the 1999 Board decision stated
that § 3.12(c)(6)(ii) requires the adjudicator to consider "how the situation appeared to the veteran
himself" when evaluating whether compelling circumstances justified the AWOL periods. R. at 15.
The Board concluded, however, that this evaluation does "not equate to what is essentially the
veteran's belief that he can offer any number of 'compelling circumstances' without regard to
establishing an evidentiary basis for same." R. at 16. The Board stated:
       While consideration of the "compelling circumstances" . . . must be from the
       veteran's point of view, it must be presumed that the veteran must in some manner
       back up his claim with some evidence because the regulation is silent as to
       establishing what kind of proof is needed to successfully plead one or more
       compelling circumstances. Consideration of one or more factors giving rise to the
       compelling circumstances from the veteran's point of view would only then apply
       when a factor was established in a factual sense. The Board acknowledges that in the
       typical case, a veteran's "age" is easily ascertained by official documents in the file,
       but since the regulation refers to age in the context of more subjective terms like
       one's "judgmental maturity," it is logical to conclude that the regulation intends to
       impart a broad framework from which to judge the case. Hence, in the Board's view,
       section 3.12(c)(6)(ii) can be construed to allow the Board to examine the record as
       a whole and determine whether the evidence supports the veteran's claim that one or


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       more of these factors excused his unauthorized absences. As a result, some cases
       may be supported by testimonial evidence alone whereas others may demand
       corroborating evidence.
Id. The 1999 Board then concluded that the 1997 Board had considered the veteran's circumstances,
but that because it had found no evidence in the record to show how any of the claimed
circumstances had played a significant role in the prolonged AWOL periods, the 1997 Board had not
committed CUE in determining that the evidence as a whole did not support the appellant's claim.
Id.
       In his brief to the Court, the appellant presents three arguments. First, he argues that the
Court's standard of review with respect to a collateral challenge to a previously final BVA decision
requires "two separate and distinct review processes." Appellant's Brief (Br.) at 9-16. In his view,
a successful CUE challenge should demonstrate either reversible error or prejudicial error. Id. at 11-
15. He argues that in reviewing a CUE challenge, the Court should first determine whether the
Board properly reviewed the collateral challenge and supported its decision with an adequate
statement of reasons or bases, and if the Court finds that it did, the Court should then conduct a de
novo review of the merits of the collateral challenge. Id. at 10-11. Second, the appellant objects to
the 1999 Board's statement that under 38 C.F.R. § 3.12(c)(6)(ii) "it must be presumed that the
veteran must in some manner back up his claim with some evidence because the regulation is silent
as to establishing what kind of proof is needed to [plead] successfully one or more compelling
circumstances." Id. at 17 (citing R. at 16). He argues that the Board cited no authority for this
requirement of "objective contemporaneous evidence," R. at 8, 341; that no such requirement is
found in the regulation; that the Board has created an evidentiary presumption that does not exist in
the law; and that in fact the regulation contemplates a subjective standard of proof. Appellant's Br.
at 17-18. In his final argument, the appellant states that even if the Court finds that the 1997 Board
did not commit CUE in requiring objective evidence of the veteran's compelling circumstances, the
BVA committed CUE in 1997 when it found that the record before it did not contain such evidence.
Id. at 21-22; Reply Br. at 4-5.
       In response to the appellant's arguments regarding the applicable standard of review in the
Court, the Secretary states that the appellant ignored well-established precedent defining the standard
of review as "arbitrary and capricious" and limiting successful CUE claims to those that demonstrate

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outcome-determinative errors. Secretary's Br. at 17-19. The Secretary also contends that the
appellant's interpretation of 38 C.F.R. § 3.12(c)(6) is inconsistent with the plain language of the
regulation and would establish "compelling circumstances" based on a veteran's statements alone.
Id. at 16. The Secretary argues that this interpretation is contrary to the language in the regulation
that directs that the reasons a veteran offers for going AWOL are to be "considered" and "evaluated."
Id. The Secretary argues that the 1997 Board did not misinterpret the regulation and did not err
when in evaluating the appellant's state of mind when he went AWOL, it examined the total evidence
of record and then determined that compelling circumstances did not exist to warrant the appellant's
prolonged AWOL periods. Id. at 17. The Secretary concludes, therefore, that the 1999 Board
decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law, and thus that the 1999 Board decision should be affirmed. Id. On October 12, 2001, the
appellant, pursuant to Rule 28(g) of this Court's Rules of Practice and Procedure, filed a citation of
supplemental authorities.


                                            II. ANALYSIS
        "A decision by the Board is subject to revision on the grounds of [CUE]. If evidence
establishes the error, the prior decision shall be reversed or revised." 38 U.S.C. § 7111(a). The Code
of Federal Regulations states:
        [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. Generally, either the correct facts, as they were known at
        the time, were not before the Board, or the statutory and regulatory provisions extant
        at the time were incorrectly applied.

38 C.F.R. § 20.1403(a)(2001); see generally Disabled American Veterans v. Gober, 

(Fed. Cir. 2000), cert. denied, 

 (2001). "'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, 

, 418 (1996) (quoting Russell v. Principi,

, 313 (1992) (en banc)). "The claimant must provide some degree of specificity as
to what the alleged error is, and, unless it is the kind of error that, if true, would be CUE on its face,


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'persuasive reasons must be given as to why the result would have been manifestly different but for
the alleged error.'" Livesay v. Principi, 

, 173-74 (2001) (en banc) (quoting Fugo
v. Brown, 

, 44 (1993)).
                                        A. Standard of Review
        The Court's review of Board decisions evaluating allegations of CUE in prior BVA decisions
is limited to whether the Board's evaluation of CUE was "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law," and whether the decision is supported by an
adequate statement of reasons or bases. 38 U.S.C. §§ 7261(a)(3)(A), 7104(d)(1); see Livesay,
15 Vet.App. at 174; Russell, 3 Vet.App. at 315. If the Board articulates a satisfactory explanation
for its decision, "including a rational connection between the facts found and the choice made, the
Court must affirm." Jordan v. Brown, 

, 175 (1997). We reject that part of the
appellant's first argument that contends that a successful CUE allegation may be based on an error
that does not manifestly change the decision's outcome, but rather "requires significant revision of
the challenged decision." Appellant's Br. at 13. This argument, presented by this same counsel, was
specifically rejected by the United States Court of Appeals for the Federal Circuit (Federal Circuit)
in Bustos v. West, which held that "CUE must be outcome-determinative." 

, 1381
(Fed. Cir. 1999). In his brief, counsel failed to cite to either Bustos or this Court's watershed en banc
opinion in Russell, supra, the source of the "manifestly changed the outcome" language expressly
adopted by Bustos.
        We likewise reject that part of the appellant's first argument that contends that a CUE
challenge is a "question of law" that entitles an appellant to both a review of the Board's decision,
as well as a review by this Court on the merits. Although this Court has held that it will conduct de
novo review of whether a viable CUE allegation has been presented to the Board, the Court has also
consistently held that the question whether the BVA erred in determining that a prior decision did
not contain CUE is reviewed by this Court under the "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law" standard of review. 38 U.S.C. § 7261(a)(3)(A); see
Phillips v. Brown, 

, 30 (1997); see also Andre v. West, 

, 11-12 (2000)
(per curiam order) (holding same standard-of-review argument "meritless" and admonishing counsel




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for "arguing what he thinks the law should be without recognizing existing precedent"); Russell,
supra.
                         B. Board's Interpretation of 38 C.F.R. § 3.12(c)(6)
         A person discharged under conditions other than honorable on the basis of an AWOL period
of at least 180 days is barred from receipt of VA benefits "unless such person demonstrates to the
satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged
unauthorized absence." 38 U.S.C. § 5303(a). Judicial review of the Secretary's "satisfaction" may
be subject to some question. See Malone v. Gober, 

, 544-45 (1997); Tulingan
v. Brown, 

, 490 (1996) (Farley, J., concurring) (stating that review of VA decision
under a statute requiring "evidence satisfactory to the Secretary" would constitute "impermissible
judicial usurpation of a responsibility committed by statute to the Secretary; i.e., "Stated another way,
how is the Court supposed to measure the Secretary's satisfaction? With a Ouiji board? A mood
ring?"). However, "[e]ven where a matter is left to the discretion of the Secretary by statute, the
Secretary [is] bound by any limitations placed upon the exercise of that discretion by regulation . . . ."
Malone, 10 Vet.App. at 545. The controlling regulation here describes factors to be considered in
making the "compelling circumstances" determination. 38 C.F.R. § 3.12(c)(6) (1996). One factor
to be considered is the quality and length of the veteran's service, which the 1997 Board decision
found here to be "honest, faithful and meritorious." R. at 341; see 38 C.F.R. § 3.12(c)(6)(i) (1996).
The adjudicator must also consider the reasons the appellant gives for going AWOL:
         Reasons which are entitled to be given consideration when offered by the claimant
         include family emergencies or obligations, or similar types of obligations or duties
         owed to third parties. The reasons for going AWOL should be evaluated in terms of
         the person's age, cultural background, educational level and judgmental maturity.
         Consideration should be given to how the situation appeared to the person himself
         or herself, and not how the adjudicator might have reacted. Hardship or suffering
         incurred during overseas service, or as a result of combat wounds [or] other
         service-incurred or aggravated disability, is to be carefully and sympathetically
         considered in evaluating the person's state of mind at the time the prolonged AWOL
         period began.
38 C.F.R. § 3.12(c)(6)(ii).
         The appellant argues in essence that the 1997 BVA erred in requiring objective
contemporaneous evidence of his circumstances and thus erred in looking to the evidence as a whole


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for support of his stated reasons for going AWOL.              However, neither the statute nor the
implementing regulation directs the adjudicator simply to accept any and all reasoning from a
claimant. If so construed, the claimant would impermissibly become the final adjudicator of his own
claim. Instead, the statute directs that a claimant "demonstrate[] to the satisfaction of the Secretary
that there are compelling circumstances," suggesting a requirement of some proof of the offered
circumstances and giving the Secretary considerable, although not unfettered, discretion in weighing
that proof. 38 U.S.C. § 5303(a); see also Gardner v. Derwinski, 

, 586-87
(1991)("[P]lain meaning [of a statute] must be given effect unless a 'literal application of [the] statute
will produce a result demonstrably at odds with the intention of its drafters.'"), aff'd sub nom.
Gardner v. Brown, 

 (Fed. Cir. 1993), aff'd, 

 (1994); WEBSTER 'S NEW
WORLD DICTIONARY 367 (3d ed. 1988) (defining "demonstrate" as "to show by reasoning; prove").
        Further, the regulation requires that the reasons offered be "evaluated" in light of the veteran's
age, background, and maturity, and that the particular hardships, as they appeared to the veteran, be
"carefully and sympathetically considered" in evaluating his state of mind at the time of his absences.
38 C.F.R. § 3.12(c)(6). In order to "evaluate" and "consider," it is reasonable that the adjudicator
look to factors other than the veteran's own statements why he went AWOL and look to the totality
of the evidence of record. It is evident from its written decision that the 1997 Board considered the
reasons offered by the appellant for his extended AWOL periods but determined that other evidence
of record did not adequately support the appellant's statements and that without such support, those
statements did not "demonstrate to the Secretary's satisfaction" compelling circumstances to warrant
the prolonged unauthorized absence. 38 U.S.C. § 5303(a); see R. at 341. In reviewing the 1997
Board decision for CUE, the 1999 Board decision likewise construed the regulation as requiring
some type of evaluation by the adjudicators of the veteran's offered reasons, adequately explained
its reasoning for this construction, and determined that the 1997 Board decision, which was based
on the totality of the evidence, was not in error. R. at 16. Because we interpret "demonstrate" to
permit the Secretary, based upon the facts of a particular case, to require that a claimant do more than
merely state that his or her particular situation was "compelling," and "evaluate" and "consider" to
permit the Secretary to do more than merely accept whatever a claimant might offer, we hold that
the 1999 Board decision was not "arbitrary, capricious, an abuse of discretion, or otherwise not in


                                                    9
accordance with law," and that the Board's statement of reasons or bases in that decision, as
described above, was adequate. 38 U.S.C. § 7261(a)(3)(A); see Russell, supra; cf. Malone, 10
Vet.App. at 545 (holding that statute stating "nursing home care may be furnished" leaves decision
to Secretary, and although regulations promulgated by Secretary provide guidelines for making such
determination, they do not "substantively or procedurally" limit that discretion).
           C. Board's Determination that "Compelling Circumstances" Did Not Exist
       The appellant's final argument, that the 1997 Board committed CUE when it found that the
record did not contain adequate objective evidence to render his reasons "compelling," amounts to
no more than a disagreement with how the Board weighed the facts and, as such, cannot serve as a
basis for establishing CUE. See 38 C.F.R. § 20.1403(d)(3) (2001); Crippen and Fugo, both supra.
The Court notes that although the appellant in his reply brief (see Carbino v. Gober, 

, 511 (1997) (holding that raising issue for first time in reply brief is contrary to Court's Rules
of Practice and Procedure), referred to evidence of record (Reply Br. at 5 (citing R. at 55, 60, 71,
157-58, 195, 254-56)) that may raise an inference that he was experiencing mental problems at the
time of his AWOL and that might in combination with other evidence demonstrate "compelling
circumstances" for his AWOL periods, the appellant has not provided "persuasive reasons" why such
evidence by itself makes his stated reasons for going AWOL "compelling" and thus has not
demonstrated that any error in failing to consider that evidence would have been outcome
determinative. Moreover, despite the appellant's repeated suggestion that the Secretary did not
"sympathetically" consider the circumstances the veteran faced at the time of his AWOL, the 1997
Board decision does recite the claimed circumstances but finds them insufficient to excuse his
prolonged AWOL. Although a different adjudicator may have concluded differently, we may not
make such a determination and are restricted to determining whether the 1999 Board abused its
discretion or acted arbitrarily or contrary to law. See Part II.A, supra. Because we conclude that the
1999 Board did not abuse its discretion in determining that the 1997 BVA did not commit CUE in
considering whether the particular circumstances in this case were "compelling," we affirm the 1999
BVA decision.




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                                    D. Supplemental Authority
       On October 12, 2001, the appellant submitted a citation to supplemental authority, arguing
that under Roberson v. Principi, 

 (Fed. Cir. 2001), "unless the [C]ourt is prepared to
reverse the Board's decision, then the CUE claim must be remanded for readjudication by the Board
utilizing the Hodge [v. West, 

 (Fed. Cir. 1998)] standard as mandated by Roberson."
Supplemental Authority at 2; see also U.S. VET . APP . R. 28(g) (citation of supplemental authority).
We reject the appellant's argument and hold that Roberson is not dispositive here.
       In Roberson, the Board held that the claimant did not demonstrate CUE in a 1984 RO
decision based on the alleged failure of the RO to consider a claim for a rating of total disability
based upon individual unemployability (TDIU). Roberson, supra. In reversing this Court's
affirmance of that BVA decision, the Federal Circuit held that if a veteran submits evidence of a
medical disability (for which he is in turn awarded service connection), makes a claim for the highest
rating possible, and submits evidence of unemployability, as the veteran had in that case, then VA
must consider a TDIU rating, even if not specifically requested by the veteran. 251 F.3d at 1382-85.
Accordingly, the case was remanded for a determination on the still-pending TDIU claim. Id. The
Federal Circuit included the following statement:
       In Hodge v. West, 

 (Fed. Cir. 1998), we . . . determined that Congress
       has mandated that the VA is "to fully and sympathetically develop the veteran's claim
       to its optimum before deciding it on the merits." We see no basis for applying a
       different standard to a CUE claim, and we hold that DVA is thus required to consider
       a CUE claim using the standard of Hodge.
Robertson, 251 F.3d at 1384. In Roberson and in Hodge, the adjudication error was related to the
development of the underlying claim, and thus at issue was the question of what standard was to be
used in the evidentiary development of those claims. Here, however, the appellant does not
challenge the character or development of the evidence during the initial adjudication; his allegation
of CUE is based upon VA's interpretation of a regulation. Moreover, Roberson, supra, involved a
situation where the Federal Circuit applied the Hodge standard in addressing the CUE determination
that was before it in order to find and require development of a non-CUE claim that was still open
and pending before VA. Accordingly, because in the instant case the appellant has not raised any
argument as to a pending non-CUE claim, any Hodge standard of development is inapplicable.


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                                    III. CONCLUSION
      Upon consideration of the foregoing, the July 26, 1999, decision of the Board of Veterans'
Appeals is AFFIRMED.




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