Chandler v. Shinseki, No. 2011-7030, Federal Circuit, Overrules Hartness v. Nicholson, 20 Vet.App. 216 (2006)

Excerpt from decision below: "The Secretary of Veterans Affairs (“Secretary”) appeals the decision of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) finding Howard Chandler entitled to a special monthly pension under 38 U.S.C. § 1521(e) (2001) in view of the Veterans Court’s interpretation of 38 U.S.C. § 1513(a) (2006) in Hartness v. Nicholson, 20 Vet. App. 216 (2006). Chandler v. Shinseki, 24 Vet. App. 23 (2010). Because this court overrules the Veterans Court’s decision in Hartness, this court reverses and remands for further proceedings." ======================== "In sum, this court overturns the Veterans Court’s decision in Hartness. Further, the plain language of sections 1513 and 1521 indicates that the parenthetical exclusion of section 1513(a) applies to only the threshold “permanently and totally disabled” requirement found in section 1521(a). Accordingly, this court reverses and remands" ================= United States Court of Appeals for the Federal Circuit __________________________ HOWARD E. CHANDLER, Claimant-Appellee, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellant. __________________________ 2011-7030 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in Case No. 08-932, Judge Alan G. Lance, Sr. _________________________ Decided: April 11, 2012 _________________________ PAIGE M. WILLAN, Chadbourne & Parke, LLP, of New York, New York, argued for claimant-appellee. With her on the brief was THOMAS E. RILEY. Of counsel on the brief was MARGARET C. BARTLEY, National Veterans Legal Services, of Washington, DC. SCOTT D. AUSTIN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent- appellant. With him on the brief were TONY WEST, CHANDLER v. DVA 2 Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN E. HOCKEY, JR., Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and Y. KEN LEE, Attorney, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before RADER, Chief Judge, MOORE, Circuit Judge and AIKEN, District Judge.* Opinion for the court filed by Chief Judge RADER. District Judge AIKEN concurs in the result. RADER, Chief Judge. The Secretary of Veterans Affairs (“Secretary”) appeals the decision of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) finding Howard Chandler entitled to a special monthly pension under 38 U.S.C. § 1521(e) (2001) in view of the Veterans Court’s interpretation of 38 U.S.C. § 1513(a) (2006) in Hartness v. Nicholson, 20 Vet. App. 216 (2006). Chandler v. Shinseki, 24 Vet. App. 23 (2010). Because this court overrules the Veterans Court’s decision in Hartness, this court reverses and remands for further proceedings. I. Howard Chandler (“Chandler”) is a U.S. Navy veteran who served on active duty during the Korean Conflict and receives pension benefits for non-service connected disabilities that render him permanently and totally disabled. In 1992, at the age of fifty-seven, Chandler began receiving pension benefits under 38 U.S.C. § 1521(a) for * The Honorable Ann L. Aiken, Chief Judge, United States District Court for the District of Oregon, sitting by designation. CHANDLER v. DVA 3 non-service connected disabilities. Chandler has a combined disability rating of 80% based on the following ratable disabilities: prostate cancer (60%), osteoarthritis of the right and left knees (10%), glaucoma/cataracts (10%), hypertension (10%), hyperthyroidism (10%), and major depressive disorder (10%). These disabilities prevent him from maintaining employment, and thus render him “permanently and totally disabled.” See 38 U.S.C. § 1502(a)(3) (“Unemployable as a result of disability reasonably certain to continue throughout the life of the person.”). He received a pension at the rate prescribed by 38 U.S.C. § 1521(b). In 2006, at seventy-one years old, Chandler applied to a Regional Office (“RO”) of the Department of Veterans Affairs (“VA”) for an enhanced pension under the special monthly rate prescribed by 38 U.S.C. § 1521(e). In his request, Chandler sought consideration for housebound status under section 1521(e) because he was older than 65 years of age and had a disability rating of more than 60%. Chandler explicitly relied on the Veterans Court’s decision in Hartness to support his claim. The RO determined that Chandler did not meet the requirements for the special monthly pension and denied the claim. The RO distinguished Hartness on the basis that Chandler was originally granted a pension based on disability, not age. Chandler filed an appeal with the Board of Veterans’ Appeals (“the Board”), which was denied because he had received a pension under section 1521 before turning sixty-five. In that case, he could not rely on section 1513(a) to remove the pension eligibility requirement of section 1521(e). Chandler appealed the Board’s decision to the Veterans Court. Initially, the Veterans Court heard oral arguments before a three-member panel, but sua sponte CHANDLER v. DVA 4 issued an en banc decision. The Veterans Court addressed Chandler’s eligibility to receive “a single pension at the higher rate described in section 1521(e) rather than the lower, basic rate.” Chandler v. Shinseki, 24 Vet. App. 23, 28 (2010). The Veterans Court specifically reconsidered its recent decision in Hartness. The Veterans Court highlighted three reasons to retain Hartness: (i) it was “rightly decided in the first instance,” (ii) it did not affect the ambiguity between sections 1513 and 1521, and (iii) it deserved application of principles of stare decisis. Id. at 28-29. The Veterans Court also determined that the purpose of section 1513(b) was to prevent a veteran from collecting two pensions, i.e., pensions under both sections 1513 and 1521, “but it does not prevent a veteran from receiving a higher pension under section 1513 simply because he would be eligible only for a basic pension under section 1521.” Id. at 30. Accordingly, the Veterans Court reversed and remanded the Board’s decision. The Secretary filed a timely appeal. This court has jurisdiction under 38 U.S.C. § 7292 (2010). II. This court has jurisdiction to review a decision of the Veterans Court “with respect to the validity of a decision . . . on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans Court] in making the decision.” Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (citing 38 U.S.C. § 7292(a); Forshey v. Principi, 284 F.3d 1335, 1359 (Fed. Cir. 2002) (en banc), superseded on other grounds by Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 402(a), 116 Stat. 2820, 2832). This court sets aside any decision of the Veterans Court that is found to be “(A) arbitrary, capricious, an CHANDLER v. DVA 5 abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.” 38 U.S.C. § 7292(d)(1) (2010). This court reviews statutory interpretations of the Veterans Court without deference. See, e.g., Boggs v. Peake, 520 F.3d 1330, 1333 (Fed. Cir. 2008). However, absent a constitutional issue, this court may not review a factual determination or an application of law to the facts. 38 U.S.C. § 7292(d)(2) (2010). At the outset, this court detects no waiver of a challenge to Hartness in this case. This court has the authority to correct a statutory interpretation of the Veterans Court when it was “relied on” to decide a case—even when it was not contested below. See Forshey, 284 F.3d at 1350. Because Hartness was an underlying premise for the decision below, this court may address this issue of statutory interpretation. The Veterans Court in Hartness v. Nicholson, 20 Vet. App. 216 (2006), addressed the interplay between 38 U.S.C. §§ 1513 and 1521. In Hartness, the Board rejected Hartness’ application for special monthly pension benefits because he did not have a single disability rated as permanent and total under §1521(e) and 38 C.F.R. § 3.351(d). On appeal, the Veterans Court found that the Board erred in not applying § 1513(a), noting that “generally, where a veterans benefit statute is ambiguous, ‘interpretive doubt is to be resolved in the veteran’s favor.’” Hartness, 20 Vet. App. at 220 (citing Gardner v. Brown, 513 U.S. 115, 118 (1994)). The Veterans Court determined that, by the plain language of § 1513(a), “the requirement under section 1521 that a veteran be permanently and totally disabled or have a disability rated as permanent and total is excluded” for a veteran who is at least 65 years old and CHANDLER v. DVA 6 meets the service requirements of § 1521. Id. The Veterans Court also held “that application of § 1513(a) results in the exclusion of the permanent-and-total-disability requirement in §§ 1521(a) and (e) when considering whether a veteran 65 years of age or older is entitled to non-service-connected disability pension.” Id. at 221. The Veterans Court stated that its application of § 1513(a) to reconstruct the requirements of § 1521 was “consistent with Congress’ intent to provide a pension to veterans aged 65 years of age or older regardless of disability.” Id. at 222. In a footnote, the Veterans Court acknowledged that the permanent and total disability requirements of subsections (a) and (e) of section 1521 were defined differently, but declined to explore the implications of conflating their meanings. Id. at 221 n.2. III. The present appeal hinges on the proper construction of 38 U.S.C. §§ 1513 and 1521 and the interplay between those statutory sections. Section 1521 provides a pension for wartime veterans with non-service-connected disabilities who meet certain requirements. Under the statute, however, a veteran only qualifies if “permanently and totally disabled:” The Secretary shall pay to each veteran of a period of war who meets the service requirements of this section . . . and who is permanently and totally disabled from non-service connected disability not the result of the veteran's willful misconduct, pension at the rate prescribed by this section . . . . 38 U.S.C. § 1521(a) (2001) (emphasis added). Section 1502 is titled “[d]eterminations with respect to disability” and sets the requirements for such disability. CHANDLER v. DVA 7 For the purposes of this chapter, a person shall be considered to be permanently and totally disabled if such person is any of the following: (1) A patient in a nursing home for long-term care because of disability. (2) Disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner. (3) Unemployable as a result of disability reasonably certain to continue throughout the life of the person. (4) Suffering from-- (A) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or (B) any disease or disorder determined by the Secretary to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. 38 U.S.C. § 1502(a) (emphasis added). The subsections of 1521 prescribe different pension rates based on a veteran’s circumstances. Two pension rates of section 1521 are relevant to the present appeal: (b) If the veteran is unmarried . . . and there is no child of the veteran in the custody of the veteran or to whose support the veteran is reasonably contributing, and unless the veteran is entitled to pension at the rate provided by subsection (d)(1) or (e) of this section, pension shall be paid to the CHANDLER v. DVA 8 veteran at the annual rate of $3,550, reduced by the amount of the veteran's annual income. * * * (e) If the veteran has a disability rated as permanent and total and (1) has additional disability or disabilities independently ratable as 60 per centum or more, or (2) by reason of a disability or disabilities, is permanently housebound but does not qualify for pension at the aid and attendance rate provided by subsection (d) of this section, the annual rate of pension payable to the veteran under subsection (b) of this section shall be $4,340 . . . . 38 U.S.C. § 1521(b), (e) (2001) (emphasis added). Section 1521(b) provides a basic pension rate for wartime veterans and section 1521(e) provides severely disabled wartime veterans a special monthly pension under a special monthly rate. Section 1521(e)’s requirement of “a disability rated as permanent and total” is defined by 38 C.F.R. § 3.351(d) as “a single permanent disability rated 100 percent disabling.” In contrast, being “permanently and totally disabled” under section 1521(a)’s eligibility requirements, is defined as satisfying any one of four criteria found in 38 U.S.C. § 1502(a), as recited above. Section 1513 was promulgated after section 1521 and provides wartime veterans who are sixty-five years of age or older with section 1521 pension benefits. Section 1513 states, in pertinent part: (a) The Secretary shall pay to each veteran of a period of war who is 65 years of age or older and who meets the service requirements of section 1521 of this title . . . pension at the rates prescribed by section 1521 of this title and under the CHANDLER v. DVA 9 conditions (other than the permanent and total disability requirement) applicable to pension paid under that section. (b) If a veteran is eligible for pension under both this section and section 1521 of this title, pension shall be paid to the veteran only under section 1521 of this title. (Emphasis added). Of particular importance, subsections (a) and (e) of section 1521 include the phrases “permanently and totally disabled” and “disability rated as permanent and total,” respectively, but, section 1513 includes only the phrase “permanent and total disability” without expressly stating which requirement of section 1521 it excludes. At the outset, this court emphasizes the importance of the statutory language. See, e.g., American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982); McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1328 (Fed. Cir. 2005). In this case, the language of section 1513(a) carries great weight, but even more important is its context in relation to section 1521. The parenthetical exclusion within section 1513(a) (i.e., “other than the permanent and total disability requirement”) closely parallels the language of section 1521(a), which requires a veteran to be “permanently and totally disabled.” Section 1521(a)’s “permanently and totally disabled” requirement serves as a threshold qualification to receive various pension rates under that section. Moreover, it applies to all the subsections of section 1521. This “permanently and totally disabled” requirement receives a broad definition in a list of flexible criteria set forth in section 1502(a). The parenthetical exclusion, however, and section 1521(a)’s “permanently and totally disabled” requirement are not identical. CHANDLER v. DVA 10 The parenthetical exclusion is also not identical to section 1521(e), which requires that a veteran have “a disability rated as permanent and total” to qualify for the special monthly pension rate. “[D]isability rated as permanent and total” is defined by 38 C.F.R. § 3.351(d) as “a single permanent disability rated 100 percent disabling.” Section 1521(e) represents a separate requirement beyond those of section 1521(a). This court does not read section 1513(a) to waive the requirements of both § 1521 subsections. The context and features of the statutory language suggest that the parenthetical in § 1513(a) does not waive the two completely different requirements of § 1521. Specifically, the parenthetical exclusion in § 1513(a) uses the definite article “the,” which indicates that the exclusion refers to a single § 1521 requirement. See Warner-Lambert Corp. v. Apotex Corp., 316 F.3d 1348, 1356 (Fed. Cir. 2003). Also, while not dispositive by itself, when taken in context with the statute as a whole, the use of the singular term “requirement” in the parenthetical exclusion indicates that the Act only contemplates excluding one of the section 1521 requirements. Section 1521 contains two different permanent and total disability requirements that have two different meanings. Section 1513 was enacted after 38 C.F.R. § 3.351, which made clear the two different requirements of § 1521. Moreover, section 1521(e) states its requirement in different terms, indicating that the subsection (e) requirement is separate from the “permanently and totally disabled” requirement in subsection (a). These distinctions in contextual placement and language prevent this court from conflating the two definitions in one. This court also declines to render one of the phrases meaningless. See TRW Inc. v. Andrew, 534 U.S. 19, 31 (2001) (stating that no clause should be superfluous); CHANDLER v. DVA 11 Bailey v. United States, 516 U.S. 137, 146 (1995) (“We assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning.”). In direct terms, the statute dictates that a permanently and totally disabled veteran for one purpose may not have a disability rated as permanent and total for another purpose. See Chandler, 24 Vet. App. at 34 (Kasold, C.J., dissenting). This court concludes § 1513(a) only eliminates the permanent and total disability requirement in § 1521(a), which applies to all § 1521 subsections. The language of section 1521 is structured so that subsection (a) is a threshold requirement and the other subsections recite additional requirements for a veteran to qualify for different pension rates. As such, § 1521’s language and structure, when viewed in light of the statute’s purpose and meaning, suggest that the parenthetical exclusion in section 1513(a) refers only to the threshold requirement found in section 1521(a) for pension benefits under § 1521 and not to the additional requirements imposed by § 1521(e). Based on the statutory language and structure, this court therefore rejects and overrules the Veterans Court’s Hartness opinion. Otherwise, Hartness introduces the possibility of the absurd result indentified by the Veterans Court wherein similarly situated veterans are treated differently under the pension provisions depending on when they first started receiving a pension. 24 Vet. App. at 24. Veterans applying for special monthly pension benefits under section 1521(e) should be on equal footing regardless of when they apply for a pension, i.e., whether the veteran applies before or after turning sixty-five years old. Thus, section 1513(b) shows that Hartness was incorrectly decided. This court’s statutory construction CHANDLER v. DVA 12 and rejection of Hartness avoids this potential for absurd results. IV. In sum, this court overturns the Veterans Court’s decision in Hartness. Further, the plain language of sections 1513 and 1521 indicates that the parenthetical exclusion of section 1513(a) applies to only the threshold “permanently and totally disabled” requirement found in section 1521(a). Accordingly, this court reverses and remands REVERSE AND REMAND

Single Judge Application, CUE Assertions filed by Counsel, No Liberal Reading, Massie v. Shinseki, 25 Vet.App. 123, 131 (2011)

Excerpt from decision below: "Moreover, assertions of CUE raised by counsel are not entitled to a liberal reading, see Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant), presumably in part because counsel are deemed to know the law and state their case, see Massie v. Shinseki, 25 Vet.App. 123, 131 (2011); MODEL RULES OF PROF'L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice)." ================= Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-1523 ChastainCE_10-1523.pdf Search Terms: MASSIE CreationDate: 03/28/2012 15:56:54 Creator: PrintServer150 ModDate: 04/10/2012 15:21:17 Producer: Corel PDF Engine Version 15.0.0.512 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 10-1523 CHARLES E. CHASTAIN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Charles E. Chastain appeals through counsel two January 22, 2010, decisions of the Board of Veterans' Appeals (Board) that ( 1) denied a request for revision of a 1970 regional office (RO) decision based on clear and unmistakable error (CUE), (2) denied a request for revision of a 1996 Board decision based on CUE, and ( 3) determined Mr. Chastain was not entitled to an effective date earlier than August 27, 2001, for service connection of his low-back disability. Mr. Chastain argues that the 2010 Board erred by determining that (1) there was no CUE in the 1970 rating decision, (2) there was no CUE in a 1992 RO decision that denied reopening of the original claim, or in the 1996 Board decision affirming the 1992 RO decision, and (3) the 1996 Board decision was final. The Secretary disputes these contentions. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, the decision of the Board will be affirmed. I. CUE in the 1970 Rating Decision With regard to Mr. Chastain's first argument, the 2010 Board determined that his complete service medical records were not before the RO, but further determined that absent this error there nevertheless would not have been a manifestly changed outcome. See MacKlem v. Shinseki, 24 Vet.App. 63 (2010) (to constitute CUE, the error must be "'undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made'") quoting Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc ))); Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993) (To constitute CUE, the error must "compel[] the conclusion, to which reasonable minds could not differ, that the result would have been different but for the error" and "persuasive reasons must be given as to why the result would have been manifestly different"). In the decision on appeal, the 2010 Board noted that the record at the time of the RO decision contained an April 1970 x-ray report that found no abnormality other than spina bifida. In contrast, the Board found that a February 1970 medical record that was not before the RO reflected a possible diagnosis ofspondylolysis, and Mr. Chastain's February 1970 serviceseparationexamination report, which also was not before the RO, noted that Mr. Chastain had spondylolysis on the left side but contained no explanation for that notation. The Board noted that the evidence was in dispute such that reasonable minds could differ over the result, and therefore the error did not constitute CUE because a manifestly changed outcome was not undebatable. Based on the record on appeal, the Board's determination is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and the Board's statement is understandable and facilitative of judicial review. See MacKlem, 24 Vet.App. at 69 ("On appeal of a Board determination that there was no CUE in a prior final RO decision, this Court's review is limited to determining whether the Board decision was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' including whether the decision is supported by an adequate statement of reasons or bases."); Allday v. Brown, 7 Vet.App. 517, 527 (1995)(Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303-04 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). As an assertion of error, Mr. Chastain contends that the 2010 Board erred in finding no CUE because to find CUE it required all relevant evidence to militate in support of a manifestly changed outcome. Assuming arguendo that such an understanding might be erroneous under the law, a fair reading of the entire Board decision reflects that it properly stated and understood that CUE could 2 only be established if reasonable persons could not disagree that the outcome would have been manifestly different but for the error. As noted above, the 2010 Board found that the evidence was in dispute and that reasonable persons could differ as to the outcome; this is a correct understanding of the law. MacKlem, 24 Vet.App. at 63; Fugo, 6 Vet.App. at 43-44; see also Damrel v. Brown, 6 Vet.App. 242, 246 (1994) (allegation of improperly weighing the evidence can never form the basis of CUE). As a second assertion of error, Mr. Chastain contends that the 2010 Board placed an unfair burden on him to demonstrate CUE when it determined that it was not clear what clinical evidence supported the notation of spondylolysis on his separation examination. Mr. Chastain reasons that because "the diagnosis was ignored by the rating official, it makes little difference that the diagnosis was not further explained or documented." Appellant's Brief (Br.) at 14. However, the burden of demonstrating CUE is a high one and this is because it is a collateral attack on an otherwise final decision. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed . Cir. 2000); Fugo, 6 Vet.App. at 44 ("Persuasive reasons must be given as to why the result would have been manifestly different . . . ."). Moreover, whether or not a decision contains CUE is predicated on the facts known at the time of the decision in which CUE is asserted, Bouton v. Peake, 23 Vet.App. 70, 71 (2008), and when those facts lack clarity or are otherwise not undebatable, then they cannot establish CUE, MacKlem, 24 Vet.App. at 63; Fugo, 6 Vet.App. at 43-44; Damrel, 6 Vet.App. at 246; see also Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) (en banc) (stating that the failure in duty to assist cannot form basis for CUE). Mr. Chastain also argues that the 2010 Board erred by improperly rejecting a 2003 affidavit of Dr. Namm because it was not in the record that existed at the time of the 1970 RO decision. However, it is well settled law that CUE determinations are based on the record before the RO or on the correct facts extant at the time of the RO decision, and evidence developed after the decision under attack may not be used to demonstrate CUE in that decision. MacKlem, 24 Vet.App. at 68, Bouton, 23 Vet.App. at 71; see also Cook, 318 F.3d at 1343. To the extent Mr. Chastain's appeal encompasses an argument that the 2010 Board erred by not considering that the 1970 RO erred by not addressing aggravation, the record reflects that any such error by the 2010 Board nevertheless is not prejudicial. Newhouse v. Nicholson, 497 F.3d1298, 3 1301 (Fed. Cir. 2007) (holding that the Court reviews record to assess prejudice). Specifically, the 2010 Board's finding that reasonable persons could differ over whether Mr. Chastain had spondylolysis necessarily means that Mr. Chastain's asserted aggravation – spondylolysis – is itself reasonably debatable and insufficient to establish the manifestly changed outcome required to find CUE. MacKlem, 24 Vet.App. at 63; Fugo, 6 Vet.App. at 43-44; Damrel, 6 Vet. App. at 246; see also Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (remand unnecessary when it "would result in this Court's unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to veteran"). II. CUE in the 1992 RO decision Mr. Chastain's assertions of error by the 2010 Board with regard to his assertions of CUE in the 1992 RO decision are inapposite. The 2010 Board found that the 1992 RO was subsumed in the 1996 Board decision that affirmed the RO decision. Because the 1992 rating decision was subsumed by the 1996 Board decision, allegations of error in the 1992 rating decision cannot be collaterally attacked by motions for revision based on CUE, and any allegation of 2010 Board error with regard to CUE in the 1992 RO decision will not be further addressed. See Manning v. Principi, 16 Vet.App. 534, 450 (2002) (noting that subsumed RO decisions cannot be collaterally attacked by motion for revision based on CUE). III. CUE in the 1996 Board Decision Mr. Chastain's argument that the 2010 Board erred by not finding CUE in the 1996 Board decision is premised on his contention that the 1996 Board misunderstood the nature of his claim and therefore failed to apply the correct analysis. Specifically, Mr. Chastain argues that (1) his counsel told his Board hearing officer that "the VA was misinterpreting the claim as one for service [-]connected spina[ bifida]," instead of one for aggravation of spina bifida as reflected byhis having spondylolysis, and (2) this, along with other allegations made below,1 constituted an assertion of Mr. Chastain also points to (1) a 1995 letter that he sent to the RO, (2) an August 3, 2001, affidavit in which he notes that in the 1995 letter he told the RO that he had filed for a "'service-aggravated disability', not a 'service-connected disability,'" and (3) two memoranda to the Board in support of his appeal now on review. However, the 1995 letter was before the 1996 Board decision, the August 3, 2011, affidavit does not assert any CUE arguments, and, as discussed infra at 6, the 2010 Board adequately addressed the CUE arguments made in the memoranda. 1 4 CUE in the 1996 Board decision that the 2010 Board erroneously did not address. The Secretary asserts that the Court does not have jurisdiction over this allegation of CUE because it was not raised below. Although CUE does not require "pleading with exactitude," Jordan v. Principi, 17 Vet.App. 261, 270-71 (2003) (finding that although "the liberal construction of a VA claimant's pleading must be tempered somewhat in CUE cases" that "does not require pleading with exactitude" (emphasis in the original)), it nevertheless must be plead with "some degree of specificity," Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002). Moreover, assertions of CUE raised by counsel are not entitled to a liberal reading, see Robinson v. Shinseki, 557 F.3d 1355 ( Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant), presumably in part because counsel are deemed to know the law and state their case, see Massie v. Shinseki, 25 Vet.App. 123, 131 (2011); MODEL RULES OF PROF'L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice). Contrary to Mr. Chastain's assertion, the record reflects confusion regarding what errors his counsel asserted below. The only clearly asserted errors at the hearing were that the 1970 RO failed to adjudicate a theoryof entitlement to benefits based on aggravation of Mr. Chastian's spina bifida,2 and that this error was compounded in subsequent decisions, including a 1996 decision. Read as a whole, and in context of the decision rendered in Mr. Chastain's case, it can be determined that counsel was referring to an error in the 1996 Board decision that denied reopening his claim, but he provided no "degree of specificity" as to what that error was, and it is unclear what that error might be. The record of proceedings reflects that the 1996 Board denied reopening his claim because Mr. Chastain had not presented new and material evidence. Assuming arguendo that a failure to reopen can constitute the manifestlychanged outcome required to establish CUE, compare Chippen As indicated in the text, supra at 4, Mr. Chastain's briefing to the Court does not specifically assert 2010 Board error in not addressing a failure of the 1970 RO to address aggravation, but, also as noted, even assuming Mr. Chastain's briefing can be read to make such an argument, it fails. 2 5 v. Brown, 9 Vet.App. 412, 422 (1996) (equating manifestly changed outcome with a change in the merits outcome and finding that a manifestlychanged outcome requires a finding that the underlying claim for benefits would be granted), with Walker v. Peake, 2008 WL 4221491, at *5 (Vet. App. Sept. 4, 2008) (per curiam order) (Kasold, J., dissenting) (suggesting that the reopening and processing of a claim is a manifestly changed outcome), Mr. Chastain does not point to anything in the record that reflects an assertion that the 1996 Board erred in its determination that new and material evidence had not been presented. Indeed, the record reflects counsel's view that the evidence of aggravation was present when Mr. Chastain filed his claim in 1970, such that it would not be new and material, as the 1996 Board found.3 Incontrast totheconfusingdiscussionreflectedinthehearingrecord,Mr. Chastainotherwise presented two assertions of CUE in the 1996 Board decision that were addressed bythe 2010 Board. Mr. Chastain makes no assertion that the 2010 Board erred in its decision as to these two assertions of CUE. Succinctly stated, Mr. Chastain fails to demonstrate that the 2010 Board failed to address any assertion of CUE in the 1996 Board decision raised by him, the hearing record, or the record of proceedings. Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) ( appellant bears burden of demonstrating error on appeal); see also Andre, supra. IV. Finality of the 1996 Board Decision Mr. Chastain's argument that the 1996 Board decision is not final is premised on his contention that the RO failed to issue him a Supplemental Statement of the Case (SSOC) following a 1995 Board remand of the 1992 RO decision. However, the record reflects that an October 13, 1995, SSOC was mailed to Mr. Chastain's address of record on October 16, 1995, and a complete copyof his claims file was mailed to his address on January29, 1996. The presumption of regularity applies to the Secretary's mailing of the SSOC and therefore Mr. Chastain must show that the presumption is rebutted by"clear evidence." See Clarke v. Nicholson, 21 Vet.App. 130, 133 (2007) (applying the presumption of regularity to the mailing of an RO decision); see also Ashley v. It is clear from the briefing filed on behalf of Mr. Chastain and the filings below made on his behalf that counsel is confused and fails to understand the difference between reopening a claim based on new and material evidence and revising a decision based on CUE. 3 6 Derwinski, 2 Vet.App. 307, 309 (1992) (presumption of regularity may be overcome only by the submission of "clear evidence to the contrary"). Although Mr. Chastain provided an affidavit to the Board alleging that he never received an SSOC from the RO, such an assertion standing alone does not rebut the presumption of regularity. Jones v. West, 12 Vet.App. 98, 102 (1998)("[A]ssertionofnonreceipt, standingalone,doesnot rebut the presumption of regularity in VA's mailing process."). Mr. Chastain attempts to bolster his argument by pointing to a letter he wrote, in which he stated that he did not receive a different VA correspondence dated March 1995; however, a review of the record or proceedings reflects that Mr. Chastain's letter was written in response to the SSOC he now claims he did not receive. Compare R. at 884 (letter from Mr. Chastain stating "in response to your letter dated October 16, 1995"), with R. at 915-22 (October 13, 1995, SSOC with an October 16, 1995, date stamp). Mr. Chastain's letter supports the conclusion that he did in fact receive the SSOC. Mr. Chastain fails to demonstrate Board error. Hilkert and Ashley, both supra. V. Conclusion Upon consideration of the forgoing, the Board's January 22, 2010 decisions are AFFIRMED. DATED: March 28, 2012 Copies to: Mark B. Leadlove, Esq. VA General Counsel (027) 7