Single Judge Application Horn v. Shinseki, No. 10-0853, 2012 WL 2355544 (Vet. App. June 21, 2012)

Excerpts from decision below: "These statements imply that the examiner was relying on the absence of objective evidence of aggravation, which comes close to shifting the burden to the veteran to show an increase in disability during service. See Horn v. Shinseki, No. 10-0853, 2012 WL 2355544, at *6-7 (Vet. App. June 21, 2012) (noting that "there is no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated . . . . [and that i]t is the lack of aggravation that the Secretary must prove, not lack of an injury"). Under these circumstances, the Court concludes that a remand is permissible for the Board to obtain clarification from the VA examiner. See Adams, supra; see also Horn, 2012 WL 2355544, at *11-12 (interpreting Adams, supra, as distinguishing between those cases where clarification of the medical evidence is required necessitating remand, and those cases where there is an obvious insufficiency of the evidence warranting reversal); Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination report is susceptible to multiple fair but inconsistent meanings, the Board errs by not seeking clarification). "Second, the January 2003 examiner did not provide any supporting rationale for opining that service" may at times have caused some temporary aggravation of his symptoms[,] but no long-term problems." R. at 850; see Horn, 2012 WL 2355544, at *7 (indicating in the context of evaluating whether the Secretary's proof is sufficient to rebut the presumption of soundness that "there is no reason that the Court should not 10 follow its caselaw that . . . an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez, 22 Vet.App. at 304)). "Instead, a plain reading of his report shows that he simply adopted the January 2003 examiner's opinion, which lacks supporting analysis. See R. at 465 (noting that the "[January 2003 examiner] stated that there was intermittent aggravation of his left foot disorder, but that there was no permanent damage"). Because the January 2003 and October 2004 opinions are insufficient to meet the Secretary's burden, the Court will vacate the Board's decision and remand the matter with instructions that the Board seek clarification from the January 2010 medical examiner addressing whether the appellant's preexisting foot condition was aggravated by service. See Adams and Horn, both supra. ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1556 BOBBY L. NEAL, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN,Judge: Theproseappellant,BobbyL.Neal, appeals aJanuary12,2011, Board of Veterans' Appeals (BVA or Board) decision that denied VA disability compensation benefits for a left foot disorder. Record of Proceedings (R.) at 3-37. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Army from August 1966 to June 1968. R. at 1550. At his January 1966 enlistment examination, the appellant denied any prior "foot trouble" and a clinical evaluation indicated that his feet were "normal." R. at 1510-11, 1519. During basic training, the appellant twice sought treatment for "sore ankles." R. at 1502. He was provided ace bandages and instructed for seven days not to run, march, or stand for prolonged periods. Id. His servicemedicalrecords (SMRs) areotherwisesilent for complaints or treatment related to his ankles and feet. R. at 1501-38. At separation, the appellant again denied any " foot trouble" and his feet were evaluated as "normal." R. at 1506-09, 1512-13. In January 1994, the appellant filed a claim for disability compensation for "aggravation to left foot toes that w[ere] cut prior to service." R. at 1491-94. A June 1994 neurological examination noted that the appellant "has some localized problems in the left foot, which has not changed. In association with this he has occasional discomfort in the left foot and has a small area where he doesn't feel things normally." R. at 1456. The examiner stated that the appellant's "sensory examination reveal[ed] no deficits proximally or distally with the exception of a little area mainly on the sole of the left foot[,] which dates back to his childhood problem." Id. In April 1995, the appellant testified that he had trouble with his left foot during basic training. R. at 1420. He explained that he had problems running and related it to an accident that occurred when he was 14 or 15 years old and his foot slipped under a lawn mower cutting three of his toes. Id. The appellant stated that his toes have been stiff since the accident and have not grown, and described his foot as deformed. R, at 1421. In July1999 and April 2000 statements, the appellant requested that the regional office(RO) obtain his treatment records from the VA hospital in Jackson, Mississippi, and adjudicate his claim for a foot condition. R. at 1226, 1256. In June 2000, the RO issued a rating decision denying the appellant's claim. R. at 1220-25. In August 2000, the appellant filed a Notice of Disagreement in which he asserted that his claim for a left foot condition dated back to his "original claim," explaining that he had filed a claim for "aggravation to the left foot, which was an injury before [he] was drafted in 1966." R. at 1201-02. The appellant also indicated that he stated that his "foot was verytender" during his induction examination and that he went on sick call during basic training and in Germany. R. at 1202. After the RO issued a Statement of the Case (R. at 1166-77) that continued to denyhis claim, the appellant submitted a Substantive Appeal in which he asserted that "[i]t is very clear that my foot was injured prior to service and that while in service my foot injury was aggravated even more, due to stress of combat." R. at 959-60; see also R. at 1157. The appellant submitted additional evidence and argument in August 2002, including a July 2002 VA podiatry clinic note indicating that the appellant presented with " a rigid deformity of the second, third, and fourth digits as a result of a severe laceration." R. at 890. The examining 2 podiatrist noted that the "[p]atient was told because of [A]rmy-issued boots in training[,] area has worsen[ed] to the point that the only option is probably surgical fusion of the toes." Id. The podiatrist assessed "[c]ontracted foot, neuroma secondary to trauma" and opined that the appellant "should be service-connected for injury because of training during active duty stage would have resulted [sic] a severe aggravation of this condition." Id. The appellant underwent a compensation and pension examination of his left foot in January 2003. R. at 849-50. The VA examiner recorded the appellant's history of injuring his left foot prior to military service: "At the age of 14 or 15 he got his left foot caught in a lawn mower and sustained a deep laceration of the plantar aspect of the left forefoot and toes." R. at 849. The examiner indicated that the "flexor tendons of the second, third, and fourth toes were severed and not repaired" resulting in a loss of motion and tenderness within the scar. Id. He further recorded the appellant's report that wearing military boots caused pain in his foot and that he sometimes experienced "swelling in the region of the first metatarsophalangeal joint." Id. Following review of the claims file, x-rays of the left foot, and a physical examination, the examiner's impression was "[s]taus post severe laceration, plantar aspect of the left forefoot and toes," "[s] tatus post traumatic arthritis, interphalangeal joints of the second and fourth toes," "[s]tatus post fusion of the interphalangeal joints of third toe," and "[n]euroma, scar of left forefoot." R. at 849. The examiner also provided the following comments: Although the patient had an extensive laceration of the left forefoot, it left him with no deformities which would interfere with wearing of normal shoes. . . . The injury definitely occurred at the age of 14 or 15, prior to his entrance into military service. Military service may at times have caused some temporary aggravation of his symptoms but no long-term problems. The patient has had no injuries to his foot since discharge from the service. In conclusion, I believe that it is more likely than not that the injury sustained at the age of 14, prior to his entry into the service, is the cause of his current left foot condition with low long-term aggravation resulting from his military duty. R. at 849-50. In May 2003, the appellant submitted another opinion by a private physician, who noted the appellant's allegations of significant left foot pain and swelling as a result of wearing military boots 3 in service. R. at 841. Following a physical examination and review of x- rayevidence, the physician noted that the appellant had significant pain with palpation, limited range of motion, diminished sensation, a positive Tinel sign, lateral plantar nervelesion, secondaryto nerve entrapment of the left foot, and post-traumatic arthritis in the joint. Id. The physician opined: This condition is related to service, especially with the military service requirements and conditions at the time, which caused aggravation of the pain and has made the pain into a chronic situation. In conclusion, I believe that this injury is military relatedsecondaryto combatboot wear,especiallywithrunningin the1960's Vietnam era. Id. In a May 2004 decision (R. at 486-94), the Board noted that although the medical evidence "appeared to support the veteran's contentions of in-service aggravation of his left foot disorder, the Board [was] not satisfied that such evidence [was] sufficient for a grant of service connection" based on the 2003 examiner's statement regarding "temporary aggravation" and the fact that the medical reports failed to discuss the lack of foot symptomatology for more than 20 years after service. R. at 488. As a result, the Board remanded the appellant's claim for additional development, including a VA medical examination, "to evaluate the nature, severity, and etiology" of the appellant's foot disorder. R. at 491-92. In October 2004, a VA physician provided an opinion, but no medical examination, addressing whether the appellant's foot condition preexisted service or was aggravated by service. R. at 465. The report indicates that the appellant had been examined in January 2003 and that an additional examination "would not add any further substance or support to the requested opinion seeing this is based upon historical information obtained from review of the claims folder." Id. Regarding preexistence, the examiner noted that "[t]he veteran freely admits that the initial injury to his foot occurred while a teenager from a lawn mower accident." Id. Regarding aggravation, the examiner noted that the January 2003 examiner "stated there was intermittent aggravation of his left foot disorder, but that there was no permanent damage. Other than that, that would occur as a result of the natural process of the disease." Id. Finally, with regard to postservice events or diseases, 4 including aging, that may have contributed to worsening of the left foot disorder, the examiner stated: There is no evidence of record of anyspecific event or disease. However, the natural process of ageing over the 30 years following . . . service has contributed to the increasing symptoms of pain within the left foot. On review of the opinions of the . . . podiatrist of [July 2002 and May2003], it is noted that both have opined that they felt the shoes worn while in service permanently aggravated the condition to the extent that he now has more pain secondary to a neuroma than he would have had he not have had to wear the militaryshoes. There is no objective evidence in the service record of any permanent damage occurring while on active duty. Also, the development of a neuroma, 30 years post exposure to service, intermittent aggravation would not be consistent with the natural process of the disease. It is far more likely than not that the natural process of ageing has lead [to] the development of the neuroma which is now the primary source of the veteran's symptomatology in his left foot. Id. At a February 2005 Board hearing, the appellant testified that the doctors who treated him for his preservice injury to his left foot were deceased and that he did not "know if it would be possible if somebody would have those records." R. at 441-42. Following the hearing, the Board denied the appellant's claim in an April 2005 decision (R. at 418-36), which was subsequently vacated pursuant to a June 2006 joint motion for remand (JMR). See R. at 407-15 (remanding because (1) the Board failed to apply the correct standard when determining that the second prong of the presumption of soundness had been rebutted,and (2) the Board erred when it relied on Maxson v. West, 12 Vet.App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000)). The Board issued another decisionin February2007denyingtheappellant's claim. R. at 366- 83. That decision was also appealed to the Court, and vacated and the matter remanded pursuant to the parties' July 2008 JMR. R. at 316-22 (remanding the case for (1) the Board to obtain a medical examination in compliance with its May 2004 remand order, (2) the examiner to consider all evidence concerning continuity of symptomatology, and (3) the Board to consider whether the appellant is a combat veteran pursuant to 38 U.S.C. § 1154(b)). InJanuary2010,theappellantunderwentacompensation andpensionexamination ofhis left foot. R. at 42-44. The examiner noted that he reviewed the claims file, documented the appellant's 5 reported preservice injury to his left foot, and conducted a physical examination. Id. The examiner also noted the appellant's assertions that (1) during high school he was unable to run or participate in sports as a result of pain associated with running, (2) he sought medical attention during basic training, (3) after discharge "his foot did about like it did [sic] before he went in the military," and (4) he continues to have chronic pain, which varies in severity. R. at 42. The examiner's impression was "[s]tatus post remote trauma of left foot with traumatic arthritis and fusion of the proximal interphalangeal joints of the second, third, and fourth toes," and "[n] euroma of left foot." R. at 43. Regarding preexistence, the examiner opined that "the claimed foot disorder clearly and unmistakably preexisted his active service." R. at 43-44. Regarding aggravation, the examiner stated: I cannot document that the left foot disorder was permanently aggravated or worsened during his period in the military. As previously noted by the examiner from 2003, there was probablyintermittent aggravation of his left foot, but there was no permanent damage. For VA purposes, temporary or intermittent flare ups of a[] preexisting injuryor disease arenot sufficient to beconsideredaggravation in service unless the underlying condition, as contrasted to the symptoms, is worsened. R. at 44. In response to the question whether "the left foot disorder [was] incurred during active service or did it become manifest to a compensable degree within a 1 year period of his discharge," the examiner stated that "it is far more likely than not that his left foot disorder preexisted his entry into the service. I am unable to document that he had a permanent worsening of his left foot condition based upon a review of the record." Id. Finally, with regard to whether the left foot condition is clearly and unmistakably related to any postservice event or disease, including aging, the examiner stated: The left foot disorder is not related to any post[]service event or disease, but again is related to the original injury which he sustained as a teenager and it is again noted that I can find no evidence that his left foot condition was permanently worsened by any incident or occurrence in the military. Id. In the decision here on appeal, the Board denied VA disability compensation benefits for a leftfootdisorderbasedonits findingthattheappellantclearlyand unmistakablyentered servicewith 6 a preexisting foot disorder and the evidence clearly and unmistakably established that his condition did not undergo an increase in severity during service. R. at 5. This appeal followed. II. ANALYSIS A. Presumption of Soundness Pursuant to 38 U.S.C. § 1111, "every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination." Thus, when no preexisting condition is noted upon entry into service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This presumption can only be overcome by clear and unmistakable evidence that the injury or disease preexisted service and was not aggravated by service. See 38 U. S.C. § 1111; Wagner, supra; see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005). " Clear and unmistakable evidence" means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet.App. 254, 258-59 (1999)). When an injury or disease has been shown to have existed before acceptance and enrollment to military service, it will be considered to have been aggravated in service, unless the Secretary establishes, by clear and unmistakable evidence, either that there was no increase in disability during service or that any increase in disability was due to the "natural progress" of the preexisting disease or injury. See 38 U.S.C. § 1111; Wagner, supra; see also Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006) ("To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was 'due to the natural progression' of the condition."). The Court reviews de novo a Board decision concerning the adequacy of the evidence offered to rebut the presumption of soundness. Quirin, 22 Vet.App. at 396. However, the U.S. Court of Appeals for the Federal Circuit has stated that in reviewing the legal sufficiency of rebuttal evidence, this Court may employ the "arbitrary, capricious, an abuse of discretion, or otherwise not 7 in accordance with law" standard of review because it subsumes de novo review of questions of law. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). It is undisputed thattheappellant's militaryentrancedocumentsdid not noteanyfootdisorder and therefore the presumption of soundness applies. R. at 9; see Wagner, supra. It is also undisputed that the first prong of the presumption of soundness was rebutted – that the evidence clearly and unmistakably established that the appellant's left foot disorder preexisted service. R. at 9. In its decision, the Board noted that the appellant acknowledged that he lacerated his left foot in his early teens and that the various medical opinions of record related the appellant's current foot disorder to his preservice injury. R. at 9-10; see Doran v. Brown 6 Vet. App. 283, 286 (1994) (concluding, "as a matter of law, that the presumption of soundness was rebutted by clear and unmistakable evidence consisting of [the] appellant's own admissions . . . of a preservice [disability]"); see also Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000). The remaining issue is whether the Government established by clear and unmistakable evidence that the appellant's preexisting foot condition did not undergo an increase in severity during service or that any increase was due to the natural progress of the disease. Wagner, supra. On appeal, the appellant argues that he has experienced foot pain since the militaryand notes that two podiatrists have stated that he should be service connected for his foot problem. Appellant's Informal Brief (Br.) at 1-2. The appellant is correct that both the July 2002 and May2003 examiners related the appellant's foot condition to service. However, in addressing the numerous medical opinions of record, the Board found that both favorable opinions were of minimal probative value for various reasons, including that neither examiner provided any supporting rationale for his opinion. R. at 17-18; see Stefl v. Nicholson, 21 Vet.App. 120, 124-25 ( 2007) (holding that the Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that " a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). Based on a review of the medical opinions and the Board's statement of reasons or bases, the Court cannot say that the Board's determination was clearly erroneous. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible 8 for assessing the credibility and weight of evidence and that the Court may overturn the Board's decision only if it is clearly erroneous). Nonetheless, in the context of the presumption of soundness, there is no requirement that the claimant submit evidence of aggravation becausetheburdenfalls on the Government to establish no aggravation. Wagner, supra. Relying primarilyon the January2010, October 2004, and January 2003 VA medical opinions, the Board concluded that evidence clearlyand unmistakablyestablished that the appellant's foot disorder was not aggravated by service. R. at 10- 19. Regarding the January 2010 medical opinion, the Board stated that the examiner "unequivocally concluded that the current left foot disorder clearly and unmistakably existed prior to service, and did not undergo any permanent worsening. The examiner acknowledged that there may have been temporary flare ups during service, but unequivocally found that the [v]eteran's disability did not permanently worsen during service." Id. The Court cannot agree with the degree of clarity assigned the January 2010 medical examiner's opinion. Although the examiner stated that "the claimed foot disorder clearly and unmistakably preexisted service" his statements regarding aggravation contain sufficient ambiguity that is was error for the Board to rely on the examiner's opinion without seeking further clarification. See Adams v. Principi, 256 F.3d 1318, 1321-22 (Fed. Cir. 2001) (affirming this Court's conclusion that remand was the appropriate remedy where there was a lack of clarity in the medical evidence and the Board should have sought clarification to resolve the VA examiner's intent). The examiner stated:"Icannotdocument thattheleftfootdisorderwaspermanentlyaggravatedorworsenedduring his period in the military. As previously noted by the examiner from 2003, there was probably intermittent aggravation of his left foot, but there was no permanent damage." R. at 44 (emphasis added). Viewed one way, the examiner's statement could be read as opining that the appellant's foot did not undergo any worsening during service and together with the other evidence of record could support the Board's conclusion that the Secretary satisfied his burden to overcome the presumption of soundness. However, the examiner's statement – "I cannot document" – could also be viewed as an inability to opine whether the appellant's foot underwent a permanent worsening during service. Although the examiner referred to the 2003 examiner's conclusion that there was "no 9 permanent damage," he twice more referred to his own inability "to document" and "find . . . evidence that [the appellant's] left foot was permanently worsened by an incident or occurrence in the military." R. at 44. These statements imply that the examiner was relying on the absence of objective evidence of aggravation, which comes close to shifting the burden to the veteran to show an increase in disability during service. See Horn v. Shinseki, No. 10-0853, 2012 WL 2355544, at *6-7 (Vet. App. June 21, 2012) (noting that "there is no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated . . . . [and that i]t is the lack of aggravation that the Secretary must prove, not lack of an injury"). Under these circumstances, the Court concludes that a remand is permissible for the Board to obtain clarification from the VA examiner. See Adams, supra; see also Horn, 2012 WL 2355544, at *11-12 (interpreting Adams, supra, as distinguishing between those cases where clarification of the medical evidence is required necessitating remand, and those cases where there is an obvious insufficiency of the evidence warranting reversal); Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination report is susceptible to multiple fair but inconsistent meanings, the Board errs by not seeking clarification). The Court is cognizant thattherecordcontainstwoadditionalVAopinions, theJanuary2003 and October 2004 reports, which also address this issue. Although the Board relied on the three medical reports to determine that the Secretary satisfied his burden to rebut the presumption of soundness, the Court finds the Secretary's proof insufficient without the January 2010 examiner's opinion. First, as conceded by the Board, the January 2003 opinion left open "some room, albeit minor, for doubt as to whether aggravation might have occurred" and the examiner's use of the phrase "more likely than not" is insufficient to meet the clear and unmistakable evidence standard. R. at 19; see also R. at 18 (noting that the examiner seemed to concede " 'low long-term aggravation'" but indicating that the examiner "likely meant 'no' instead of 'low'"). Second, the January 2003 examiner did not provide any supporting rationale for opining that service" may at times have caused some temporary aggravation of his symptoms[,] but no long-term problems." R. at 850; see Horn, 2012 WL 2355544, at *7 (indicating in the context of evaluating whether the Secretary's proof is sufficient to rebut the presumption of soundness that "there is no reason that the Court should not 10 follow its caselaw that . . . an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez, 22 Vet.App. at 304 )). In this regard, the Court notes that the Board may not discount favorable medical evidence that is conclusory, yet favor another medical opinion that also fails to provide any rationale for its conclusion. Third, the October 2004 examiner did not provide an independent opinion regarding aggravation. Instead, a plain reading of his report shows that he simply adopted the January 2003 examiner's opinion, which lacks supporting analysis. See R. at 465 (noting that the "[January 2003 examiner] stated that there was intermittent aggravation of his left foot disorder, but that there was no permanent damage"). Because the January 2003 and October 2004 opinions are insufficient to meet the Secretary's burden, the Court will vacate the Board's decision and remand the matter with instructions that the Board seek clarification from the January 2010 medical examiner addressing whether the appellant's preexisting foot condition was aggravated by service. See Adams and Horn, both supra. B. The Appellant's Remaining Arguments Given this disposition, the Court will not at this time address the remaining arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 ( 2001). "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him." Id. In pursuing the matter on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider anysuch relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). 11 III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Board's January 12, 2011, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision. DATED: July 5, 2012 Copies to: Bobby L. Neal VA General Counsel (027) 12

Morris v. Shinseki, No. 2011-7061 (Decided: May 15, 2012), Federal Circuit, Presumption of Soundness Does Not Apply to Personality Disorders

Excerpt from decision below: "In sum, according to the express language of 38 C.F.R. § 3.303(c), personality disorders are not diseases or injuries within the meaning of § 1110 and thus are not compensable. Therefore, the Board and the Veterans Court did not err in holding the presumption of soundness inapplicable to Mr. Morris’s case. The 1988 Board Decision therefore was not tainted by CUE. As we hold there was no CUE in the 1988 Board Decision, we need not address the government’s alternative argument that, assuming there was CUE, the error was not outcome determinative. ============================ United States Court of Appeals for the Federal Circuit __________________________ JACK D. MORRIS, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7061 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case no. 09-0017, Judge Robert N. Davis. _________________________ Decided: May 15, 2012 _________________________ KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. SCOTT D. AUSTIN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent- appellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy MORRIS v. DVA 2 Assistant General Counsel, and DANA RAFFAELLI, Attorney, United States Department of Veterans, of Washington, DC. __________________________ Before DYK, SCHALL, and MOORE, Circuit Judges. Opinion for the court filed by Circuit Judge SCHALL. Concurring opinion filed by Circuit Judge DYK. SCHALL, Circuit Judge. Jack D. Morris appeals the October 15, 2010 decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) in Morris v. Shinseki, No. 09-0017, 2010 WL 4068749 (Vet. App. Oct. 15, 2010). In its decision, the Veterans Court affirmed the September 12, 2008 decision of the Board of Veterans’ Appeals (“Board”) in In re Morris, No. 04-38 491 (Bd. Vet. App. Sept. 12, 2008) (“2008 Board Decision”). In that decision the Board found no clear and unmistakable error (“CUE”) in its February 9, 1988 decision denying Mr. Morris’s claim for service connection for a psychiatric disorder. See In re Morris, No. 87-11 982 (Bd. Vet. App. Feb. 9, 1988) (“1988 Board Decision”). We affirm. BACKGROUND I. Mr. Morris served on active duty in the United States Army from July 31, 1964, to October 6, 1964. 1988 Board Decision at 2. His entrance examination revealed no psychiatric abnormality. Subsequently, in mid- September of 1964, he underwent an examination in connection with his separation from the service. That examination also revealed no psychiatric abnormality. At the time, Mr. Morris did, however, complain of experiencing “nervous trouble and other symptoms.” Id. Mr. MORRIS v. DVA 3 Morris’s clinical record cover sheet dated October 6, 1964, sets forth the following diagnosis: “Passive aggressive reaction, chronic, moderate, unchanged, manifested by periods of anxiety and inability to express anger. Stress: Minimal. Predisposition: Moderate, unstable family. Disability: Moderate.” On January 21, 1966, Mr. Morris filed with the Department of Veterans Affairs (“VA”) a claim for disability compensation for a psychiatric disorder. In support of his claim, he stated that, while in basic training, he had suffered mental and physical abuse from his platoon sergeant, which had caused him to experience a nervous breakdown. In a May 5, 1966 rating decision, the VA’s Regional Office (“RO”) denied the claim. Noting that the file did not reflect any record of treatment for a nervous condition during service, the rating specialists concluded that Mr. Morris’s condition was in a chronic stage and had existed prior to service. The RO thus determined that there was no indication that Mr. Morris’s condition was incurred in or aggravated during service. II. On January 31, 1986, Mr. Morris sought to reopen his claim for a psychiatric disorder by providing lay statements and a statement from a therapist. After the RO concluded that the additional evidence did not constitute new and material evidence sufficient to warrant reopening of the claim, Mr. Morris appealed to the Board. In its February 9, 1988 decision, the Board determined that, contrary to what the RO had found, Mr. Morris had come forward with new and material evidence in support of his claim. 1988 Board Decision at 5. However, after reviewing the evidence, the Board concluded that the evidence did not show that Mr. Morris’s “psychiatric symptoms” were “due to other than a personality MORRIS v. DVA 4 disorder.” Id. “Under 38 C.F.R. § 303(c),” the Board noted, “a personality disorder is not a disease within the meaning of applicable legislation providing for compensation benefits.” Id. at 4. Based upon the VA’s regulation, the Board therefore denied Mr. Morris’s claim of service connection for a psychiatric disorder. Id. at 6.1 On February 23, 1988, the VA considered medical evidence from the University of South Florida psychology department. Mr. Morris had submitted this evidence on May 5, 1987, while his appeal before the Board was 1 The version of 38 C.F.R. § 3.303(c) in effect at the time of the 1988 Board Decision is identical to the present version of the regulation. Compare 38 C.F.R. § 3.303(c) (1987) with 38 C.F.R. § 3.303(c) (2011). Pertinent to this case, § 3.303(c) provides in relevant part as follows: Preservice disabilities noted in service: There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. . . . In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. MORRIS v. DVA 5 pending. Following a further denial of his claim, Mr. Morris presented additional medical evidence to the VA. This evidence indicated that Mr. Morris had been diagnosed with schizophrenia and included an opinion from a VA physician that the schizophrenia had its onset during service. On June 14, 1990, the Board again denied Mr. Morris’s claim of service connection for a psychiatric disorder, concluding that the evidence still was not sufficient to show that the previous diagnosis of a personality disorder was in error. In re Morris, No. 90-02 895, slip op. at 8 (Bd. Vet. App. June 4, 1990). Mr. Morris then appealed to the Veterans Court. In the wake of a remand from the Veterans Court in March of 1992, the Board, in May of 1992, received the opinion of a psychiatrist who was an examiner for the Board. Based upon that opinion, the December 1992 opinion of an independent medical examiner, as well as additional evidence before it, the Board reopened Mr. Morris’s claim on February 3, 1993 and concluded that “the preponderance of the old and new evidence, considered together, supports the claim for service connection for schizophrenia.” In re Morris, No. 90-02 895, slip op. at 4 (Bd. Vet. App. Feb. 3, 1993). At the same time, however, the Board determined that its February 1988 decision “was well supported by the evidence then of record and in accordance with all applicable legal criteria” and that the decision was thus final. Id., slip op. at 9. Subsequently, in April of 1993, the RO awarded service connection for schizophrenia effective from May 5, 1987, and assigned a 100 percent rating from that date. The RO assigned May 5, 1987, as the effective date because that was when the VA received certain additional evidence from Mr. Morris. Thereafter, in 1996, the Board denied Mr. Morris’s claim that the 1966 RO decision contained CUE and that the award of service connection therefore MORRIS v. DVA 6 should be made retroactive to the date of his 1966 claim for benefits. In re Morris, No. 94-06 408 (Bd. Vet. App. Apr. 19, 1996). III. In September of 2004, Mr. Morris filed a motion with the Board in which he argued that the 1988 Board Decision was tainted by CUE because the Board failed to correctly apply 38 U.S.C. §§ 105(a), 1110, and 1111. According to Mr. Morris, the Board improperly relied upon the existence in his service medical records of a “non-compensable” psychiatric condition (personality disorder) as a basis for denying disability compensation. Instead, he urged, the Board should have relied upon the presumption of service connection under § 105(a) and the presumption of sound condition under § 1111 to award him compensation under § 1110 for a psychiatric disorder. 2008 Board Decision at 4-5. In its September 12, 2008 decision, the Board denied Mr. Morris’s CUE claim. The Board began by noting the claim that Mr. Morris had presented in 1988. The Board pointed out that, at that time, Mr. Morris contended that, during active duty, he developed, and was treated for, an acquired psychiatric disability; that he was in sound condition when he entered the service; that he was harassed by a drill sergeant, which resulted in his development of a nervous disorder; and that, following separation from the service, his psychiatric problems continued. 2008 Board Decision at 9. Continuing, the Board noted that the 1988 Board had determined that the initial service medical records on file showed that any psychiatric symptoms present during service were acute and transitory and attributed to a personality disorder. Id. The 1988 Board also had determined, it was noted, that a chronic acquired psychiatric disorder was not indicated MORRIS v. DVA 7 during service or on an examination for separation from active duty. Id. In addition, the Board pointed out, the 1988 Board had determined that, although more recently developed medical records referred to an investigation of a “maltreatment incident,” those records did not demonstrate the presence of an acquired psychiatric disorder during service but, instead, psychiatric symptoms associated with a personality disorder, which for short periods resulted in symptoms such as anxiety and depression. Id. Finally, the Board set forth the 1988 Board’s ultimate conclusions: (1) that a chronic acquired psychiatric disorder was not incurred or aggravated in service; (2) that a personality disorder is a congenital or developmental defect and not a disease within the meaning of the applicable regulation, 38 C.F.R. § 3.303(c); and (3) that evidence received subsequent to the May 1966 rating decision, which was not appealed, did not present a new factual basis warranting the grant of service connection for a psychiatric disorder. Id. at 10. Turning to Mr. Morris’s contentions, the Board first rejected the argument that, under 38 U.S.C. § 105(a) a veteran is entitled to a statutory presumption of service connection for an alleged disability. The Board reasoned that § 105(a) pertains to line of duty and misconduct considerations, neither of which was on appeal or before the Board in 1988.2 2008 Board Decision at 11. Section 2 38 U.S.C. § 105(a) states in relevant part: An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active MORRIS v. DVA 8 105(a), the Board stated, “does not serve to establish a presumption that any claimed disease or injury in service is entitled to service connection, because a claimant makes a claim for service connection.” Id. The Board viewed Mr. Morris’s main argument to be that the 1988 Board had failed to afford him the presumption of sound condition under 38 U.S.C. § 1111, which, he claimed, would have entitled him to compensation under 38 U.S.C. § 1110 for a psychiatric disorder.3 Addressing this argument, the Board stated that “[t]he veteran was afforded the presumption of soundness with respect to the issue of service connection for an acquired psychiatric disorder in the February 1988 Board decision.” 2008 Board Decision at 11. After making this statement, the Board observed that the 1988 Board had noted that Mr. Morris’s entrance psychiatric examination was normal duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs. 3 38 U.S.C. § 1110 provides that a veteran shall be compensated for a disability arising from an injury or disease incurred or aggravated while the veteran was on active duty. 38 U.S.C. § 1111 supplements § 1110 and states: For the purposes of section 1110 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. MORRIS v. DVA 9 and that Mr. Morris’s in-service symptoms were associated with a personality disorder and were not due to a chronic acquired psychiatric disability. Id. The Board stated that the 1988 denial of service connection “was not made on the basis that the veteran had a preexisting defect, infirmity, or disorder which was not aggravated during service. Rather, the denial of service connection for an acquired psychiatric disability was made on the basis that an acquired psychiatric disability was not present during service and was not incurred in service.” Id. at 12. Putting the matter another way, the Board reasoned that “the denial of service connection for a chronic acquired psychiatric disability was based on a determination that the veteran did not have this disability during service and any post-service symptoms did not establish that a chronic acquired psychiatric disability originated during service. The . . . denial was not on the basis that an acquired psychiatric disability preexisted service and was not aggravate therein.” Id. Finally, the Board remarked that, although Mr. Morris was arguing that the 1988 Board had failed to afford him § 1111’s presumption of soundness, what he really was complaining about was the 1988 Board’s weighing of the evidence and its finding that, during his period in service, he had suffered from a personality disorder, which by regulation is not compensable. Id. at 13. See 38 C.F.R. § 3.303(c). Based upon its analysis, the Board denied Mr. Morris’s motion for revision of the 1988 Board decision on the basis of CUE. 2008 Board Decision at 14. IV. Mr. Morris appealed the Board’s denial of his motion to the Veterans Court. Before the Veterans Court, he pressed the same arguments that he had advanced before the Board. He again argued that the 1988 Board had failed to apply correctly 38 U.S.C. §§ 105(a), 1110, and MORRIS v. DVA 10 1111. The Veterans Court rejected Mr. Morris’s arguments. Noting that Mr. Morris had offered no evidence that the 1988 Board incorrectly considered his condition a personality disorder, the court stated that it previously had held that § 1111 does not apply to personality disorders in view of the language of 38 C.F.R. § 3.303(c). Morris v. Shinseki, No. 09-0017, 2010 WL 4068749 at *2 (Vet. App. Oct. 15, 2010) (citing Winn v. Brown, 8 Vet. App. 510, 516 (1996) (“A personality disorder . . . is not the type of disease- or injury related-defect to which the presumption of soundness can apply.”)) The court therefore affirmed the Board’s September 12, 2008 decision that found no CUE in its 1988 decision. This appeal followed. DISCUSSION I. Our jurisdiction to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292(a); see Forshey v. Principi, 284 F.3d 1335, 1338 (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. We have jurisdiction to review a decision of the Veterans Court “with respect to the validity of a decision of the [Veterans] Court 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. 38 U.S.C. § 7292(a). Our authority extends to deciding all relevant questions of law, and we can set aside a regulation or an interpretation of a regulation relied upon by the Veterans Court when we find it to be “arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of MORRIS v. DVA 11 statutory jurisdiction, authority, or limitations; or in violation of a statutory right; or without observance of procedure required by law.” Jones v. West, 194 F.3d 1345, 1350 (Fed. Cir. 1999); see 38 U.S.C. § 7292(d)(1). Our authority, however, does not extend to the ability to review factual determinations or the application of a law or regulation to a particular set of facts unless a constitutional issue is presented. 38 U.S.C. § 7292(d)(2). As set forth below, the sole issue in this case is whether the Veterans Court, in affirming the 2008 Board Decision, erred in its interpretation of the pertinent regulation, 38 C.F.R. § 3.303(c). We therefore agree with the parties that we have jurisdiction over this appeal. II. In order to revise a final VA decision on account of CUE, the following must be demonstrated: 1) Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied, 2) The error must be “undebatable” and the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and 3) A determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008) (citing Russell v. Principi, 3. Vet. App. 310, 313-14 (1992)). Mr. Morris hinges his CUE claim on the argument that, in the 1988 Board Decision, the Board incorrectly MORRIS v. DVA 12 applied 38 C.F.R. § 3.303(c) and that the 2008 Board Decision and the decision of the Veterans Court now on appeal continued the error. His argument essentially is as follows: It is true that under § 3.303(c) a disability attributable to a personality disorder is not compensable. Reply Br. at 2. However, under 38 U.S.C. § 1111, a veteran claiming disability compensation under 38 U.S.C. § 1110 is entitled to a presumption that he was in sound condition when he entered service.4 Thus, even when the record contains an in-service diagnosis of a personality disorder, in order to have that diagnosis defeat a claim for compensation under § 1110, the VA must rebut the presumption of sound condition under § 1111. According to Mr. Morris, if, as here, “no pre-service disability was noted, . . . the VA must in accordance with the presumption of sound condition show by clear and unmistakable evidence that the condition noted during service was a pre-service disability.” Claimant’s Br. at 12. That this requirement exists, Mr. Morris contends, is supported by the language of § 3.303(c), id. at 10-14, and the interpretation of § 3.303(c) set forth in two VA General Counsel opinions, id. at 14-19. Thus, Mr. Morris argues, the Board erred when it interpreted § 3.303(c) to mean that the in-service diagnosis of a personality disorder in and of itself was enough to defeat Mr. Morris’s claim of a psychiatric disorder. Rather, the VA should have been required to demonstrate affirmatively that the personality disorder existed prior to service. In short, we understand Mr. Morris to be saying the following: I recognize that a personality disorder is not a compensable disability. I 4 The versions of 38 U.S.C. §§ 1110 and 1111 in effect at the time of the 1988 Board Decision are identical to the present versions of the statutes. Compare 38 U.S.C. § 310 (1982) with 38 U.S.C. § 1110 (2010) and 38 U.S.C. § 311 (1982) with 38 U.S.C. § 1111 (2010). MORRIS v. DVA 13 also recognize that, in my case, the record shows an inservice diagnosis of a personality disorder. However, before that diagnosis could serve to disqualify me from compensation, the VA should have been required to overcome § 1111’s presumption of soundness by demonstrating that I had a personality disorder when I entered the service. The government responds that the Veterans Court did not err in affirming the 2008 Board Decision. The government starts from the premise that, in order to be entitled to compensation under 38 U.S.C. § 1110, a veteran must demonstrate that he or she presently suffers from a disability, that there was in-service incurrence or aggravation of a disease or injury, and that there is a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Resp’t’s Br. at 14. Next, relying upon our decision in Terry v. Principi, 340 F.3d. 1378, 1382 (Fed. Cir. 2003), the government contends that, if a disability cannot be attributed to an injury or disease incurred or aggravated in the line of duty, the disability is not compensable. In that regard, the government points out that § 3.303(c) states that a personality disorder is not a disease or injury within the meaning of § 1110. Resp’t’s Br. at 14 (citing Terry, 340 F.3d at 1382). “Accordingly,” the government reasons, “pursuant to Terry, any disability attributable to personality disorders is not compensable.” Id. In other words, “because a personality disorder is not a disease or injury, the condition cannot form the basis for an award of disability compensation.” Id. at 16. The government thus takes the position that the Veterans Court correctly held that the Board did not err in not applying the presumption of soundness to Mr. Morris’s claim. The reason is that because Mr. Morris’s personality disorder was not a compensable injury or disease, it MORRIS v. DVA 14 could not be service connected. Therefore, § 1111’s presumption of soundness did not apply in his case. Id. at 17. At the same time, the government argues that neither of the two VA General Counsel opinions upon which Mr. Morris relies supports his case. Id. at 20-22. Finally, the government makes the alternative argument that, even if the Veterans Court erred in its conclusion that § 3.303(c) renders § 1111’s presumption of soundness inapplicable in this case, CUE did not occur because the purported error was not outcome determinative. Id. at 23-24. III. Section 1110 provides compensation to a veteran for a disability resulting from an injury or disease incurred or aggravated during active duty. To demonstrate entitlement to compensation under § 1110, a veteran must establish: “(1) the existence of a present disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). “[I]f a disability cannot be attributed to an ‘injury’ or ‘disease’ incurred or aggravated in the line of duty, the disability is not compensable.” Terry, 340 F.3d at 1382. We have previously observed that there is a “gap left by the statute with respect to the question of what kinds of conditions qualify as injuries or diseases for purposes of entitlement to veterans’ benefits.” Id. at 1383. The VA, however, has addressed this issue. Pursuant to its authority under 38 U.S.C. § 501 “to prescribe all rules and regulations which are necessary to carry out the laws administered by the [VA],” the VA promulgated the MORRIS v. DVA 15 regulation set forth at 38 C.F.R. § 3.303(c). As noted above, the regulation provides in relevant part as follows: Preservice disabilities noted in service: There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. . . . In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. In Terry, we upheld the validity of § 3.303(c) as consistent with the § 1110. 340 F.3d at 1381-86. Turning to the present case, under the plain language of § 3.303(c), a personality disorder is not a disease or injury within the meaning of § 1110, a point upon which both the government and Mr. Morris agree. See Reply Br. at 2; Resp’t’s Br. at 14; see also Conley v. Peake, 543 F.3d 1301, 1305 (Fed. Cir. 2008) (“Under 38 C.F.R. § 3.303(c), . . . personality disorders are considered ‘[c]ongenital or developmental defects’ for which service connection cannot be granted because they ‘are not diseases or injuries within the meaning of the applicable legislation.’”). See MORRIS v. DVA 16 also 38 C.F.R. § 4.9 (“[P]ersonality disorder and mental deficiency are not diseases or injuries in the meaning of the applicable legislation for disability compensation purposes.”); § 4.127 (“Mental retardation and personality disorders are not diseases or injuries for compensation purposes . . . .”).5 Thus, the personality disorder which the 1988 Board found Mr. Morris had fell outside the scope of the applicable legislation and therefore was not compensable. The Board did not err in denying compensation for the disorder. As seen, Mr. Morris tries to avoid the bar of § 3.303(c) by arguing that the 1988 Board erred by failing to grant him the presumption of soundness. The effort fails, however. Section 1111 grants veterans a statutory presumption of soundness only “for the purposes of section 1110,” and § 1110, in turn, provides compensation only for an “injury” or “disease” contracted or aggravated in the line of duty. If pursuant to a valid VA regulation (38 C.F.R. § 3.303(c)), a condition is not an injury or disease within the scope of § 1110, then § 1111 and the presumption of soundness simply do not come into play. Terry, 340 F.3d at 1386 (“[W]hen sections 1110 and 1111 are read together, ‘the term defect in section 1111 necessarily means a defect that amounts to or arises from disease or 5 The version of 38 C.F.R. § 4.9 in effect at the time of the 1988 Board Decision is identical to the present version of the regulation. Compare 38 C.F.R. § 4.9 (1982) with 38 C.F.R. § 4.9 (2011). Although not identical to the present version of the regulation, the version of 38 C.F.R. § 4.127 in effect at the time of the 1988 Board Decision treats personality disorders in the same manner. Compare 38 C.F.R. § 4.127 (1982) (“Mental deficiency and personality disorders will not be considered as disabilities under the terms of the schedule.”) with 38 C.F.R. § 4.127 (2011) (“Mental retardation and personality disorders are not diseases or injuries for compensation purposes . . . .”). MORRIS v. DVA 17 injury.’” (quoting Winn v. Brown, 8 Vet. App. 510, 516 (1996)). As noted in the 1988 Board Decision, based upon the record before it, the Board found that, while in service in 1964, Mr. Morris exhibited a personality disorder, and under 38 C.F.R. § 3.303(c), as well as 38 C.F.R. §§ 4.9 and 4.127, a personality disorder is not a compensable “injury” or “disease.” Accordingly, we are unable to agree with Mr. Morris that the Board committed CUE when it denied his claim for service connection without applying § 1111’s presumption of soundness. See 1988 Board Decision. Mr. Morris’s argument that the presumption of soundness should be applied in the case of a personality disorder effectively conflates the diagnosis inquiry and the causation inquiry. Diagnosis involves the observation of certain symptoms and characteristics that indicate the presence of a particular condition. The diagnosis process does not implicate the question of whether the veteran was in sound condition when he or she entered service. That is because all that is relevant at the diagnosis stage is determining the service member’s present condition. Once a diagnosis is made, however, as was the case here, the temporal relationship between the onset of symptoms and service must be examined to determine whether the disorder is service related. It is only at this stage in the inquiry that the presumption of soundness becomes relevant. Causation is not at issue in this case, however. Because Mr. Morris was diagnosed with a personality disorder, it was unnecessary to examine causality as personality disorders cannot legally be service related. See Conley, 543 F.3d at 1305 (“Under 38 C.F.R. § 3.303(c), . . . personality disorders are considered ‘[c]ongenital or developmental defects’ for which service connection cannot be granted because they ‘are not diseases or injuries within the meaning of the applicable legislation.’”). In effect, Mr. Morris is trying to circumvent the 1988 factual MORRIS v. DVA 18 finding that there was an in-service diagnosis of a personality disorder, which we cannot review, by importing the presumption of soundness into the diagnosis inquiry. In support of his position, Mr. Morris highlights certain language within § 3.303(c). Specifically, he points to the following language: In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. This sentence does not support Mr. Morris’s argument, however. Section 3.303(c) states that based on universally recognized medical principles, certain disabilities arise from conditions that necessarily are unrelated to service and thus, by definition, can not be service related. The description of personality disorders within § 3.303(c) merely explains why personality disorders can not be service related, which the regulation emphasizes. (“[P]ersonality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.”). See also 38 C.F.R. § 4.9 (“[P]ersonality disorder and mental deficiency are not diseases or injuries in the meaning of the applicable legislation for disability compensation purposes.”); § 4.127 (“Mental retardation and personality disorders are not diseases or injuries for compensation purposes . . . .”). As far as mental disorders distinct from personality disorders are concerned, “chronic psychoneurosis of long duration or MORRIS v. DVA 19 other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin.” Thus, the language of § 3.303(c) does not support the argument that a personality disorder is a compensable disability unless it is shown to exist prior to service. Nor do the two opinions from the VA General Counsel provide Mr. Morris with any help. DVA Op. Gen. Counsel Prec. 82-90 (July 18, 1990) discusses whether disorders of congenital or developmental origin may be service related. The opinion distinguishes between a disease, which is a condition that is capable of improvement or deterioration, and a defect, which is a condition that is not capable of improvement or deterioration. In making this distinction, the General Counsel states that hereditary “diseases” may qualify for service connection whereas hereditary “defects” are excluded from coverage by § 3.303(c). At the same time, DVA Op. Gen. Counsel Prec. 67-90 (July 18, 1990) discusses whether a hereditary disease always rebuts the presumption of soundness. Again focusing on the distinction between a “disease” and a “defect,” the General Counsel states that hereditary “diseases,” which are capable of improvement or deterioration, may be entitled to service connection. When the two opinions are read together, it is apparent that they are referring solely to hereditary diseases that are not “congenital or developmental defects”; such defects are expressly excluded from coverage by § 3.303(c). Indeed, DVA Op. Gen. Counsel Prec. 82-90 (July 18, 1990) makes clear that the terms “disease” and “defect” are mutually exclusive. Thus, contrary to Mr. Morris’s contention, the two opinions provide no support for the proposition that “[c]ongenital or developmental defects, refractive error of the eye, MORRIS v. DVA 20 personality disorders, and mental deficiency” are entitled to the presumption of soundness. In sum, according to the express language of 38 C.F.R. § 3.303(c), personality disorders are not diseases or injuries within the meaning of § 1110 and thus are not compensable. Therefore, the Board and the Veterans Court did not err in holding the presumption of soundness inapplicable to Mr. Morris’s case. The 1988 Board Decision therefore was not tainted by CUE. As we hold there was no CUE in the 1988 Board Decision, we need not address the government’s alternative argument that, assuming there was CUE, the error was not outcome determinative. CONCLUSION For the foregoing reasons, the decision of the Veterans Court is affirmed. Each party shall bear its own costs. AFFIRMED United States Court of Appeals for the Federal Circuit __________________________ JACK D. MORRIS, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7061 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case no. 09-0017, Judge Robert N. Davis. __________________________ DYK, Circuit Judge, concurring. I agree that the majority has reached the correct result and join the majority, but I think additional explanation is useful because the regulation is not immediately clear on its face. The statute provides that only an “injury” or “disease” that is service-connected is compensable. 38 U.S.C. §§ 1110, 1131. These terms are not defined in the statute, but the Department of Veterans Affairs regulations defining “injury” and “disease” are entitled to Chevron deference. See Terry v. Principi, 340 F.3d 1378, 1382 (Fed. Cir. 2003). Those regulations state that personality disorders are not injuries or diseases within the meaning of the statute. See 38 C.F.R. MORRIS v. DVA 2 § 3.303(c) (“[P]ersonality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.”); id. § 4.9 (“[P]ersonality disorder and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes.”); id. § 4.127 (“Mental retardation and personality disorders are not diseases or injuries for compensation purposes.”). The first question is whether the regulation at issue, 38 C.F.R. § 3.303(c), defines “personality disorder.” I think it does. The regulation provides, in relevant part: In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. 38 C.F.R. § 3.303(c) (emphasis added). The most natural reading of this regulation is that a personality disorder is a disorder “characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior.” Id. Thus, in theory, if a disorder did not exist before service, it would not fall into the category of a personality disorder, which requires a “lifelong pattern.” However, I do not read the regulation as applying the presumption of soundness or aggravation to personality disorders or as requiring proof of preservice origin or no aggravation, but only to require such a showing with respect to “chronic psychoneurosis of long duration or MORRIS v. DVA 3 other psychiatric symptomatology.” Id. In other words, the clause “shown to have existed prior to service with the same manifestations during service” modifies only “chronic psychoneurosis of long duration or other psychiatric symptomatology,” which—unlike personality disorders —may be compensable if they are shown not to have existed prior to service. Id. While the regulation then appears to state that all the listed items “will be accepted as showing preservice origin,” that means merely that all such disorders are non-compensable. Id. Thus I agree that the majority here is correct in holding that the presumption of soundness does not apply to personality disorders.

Donnellan v. Shinseki, No. 2011-7127(Decided: April 18, 2012), Review of Remands by Veterans Court, Williams, 275 F.3d at 1364

Excerpt from decision below: "Mr. Donnellan argues (1) that the Veterans Court’s ruling on the statutory presumption issue is a clear and final decision on the merits of his claim that will DONNELLAN v. DVA 6 govern the remand proceedings, (2) that it adversely affects him because it increases the evidentiary burden on him before the Board, and (3) that it may not survive remand. See Williams, 275 F.3d at 1364." ================= "Because this is not a case in which the veteran’s claim is that he has a legal right not to be forced to undergo a remand, we hold that the remand order in this case falls within the category of nonfinal orders that we decline to review. ====================== United States Court of Appeals for the Federal Circuit __________________________ KEVIN T. DONNELLAN, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7127 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in Case No. 07-2041, Chief Judge Bruce E. Kasold. ___________________________ Decided: April 18, 2012 ___________________________ KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. DOMENIQUE G. KIRCHNER, Trial Attorney, Commercial Litigation Branch, Civil Division, United State Department of Justice, of Washington, DC, argued for respondent- appellee. With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of DONNELLAN v. DVA 2 counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and JONATHAN TAYLOR, Attorney, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before RADER, Chief Judge, BRYSON and LINN, Circuit Judges. BRYSON, Circuit Judge. Kevin T. Donnellan appeals the decision of the Court of Appeals for Veterans Claims (“the Veterans Court”), which remanded his case to the Board of Veterans’ Appeals. Because the remand order of the Veterans Court does not fall into the narrow exception to our rule against review of remand orders, we dismiss the appeal. I Mr. Donnellan served in the Army National Guard from October 1969 through February 2000. In 1996, he underwent surgery to remove a portion of his sigmoid colon as part of his treatment for colon cancer. In March 1998, after a diagnosis of acquired polyposis, he had a total colectomy. As part of his Army National Guard duty, Mr. Donnellan participated in “active duty for training” from May 30, 1998, through June 5, 1998. On June 3, 1998, while he was on active duty for training, Mr. Donnellan developed a fever, chills, and severe abdominal pain. He was taken to a local hospital where he underwent emergency surgery to remove a portion of his small intestine because of a small bowel perforation. On the fourth day after the surgery, Mr. Donnellan’s doctors became aware of a small bowel fistula, which they treated. DONNELLAN v. DVA 3 Mr. Donnellan subsequently applied to the Department of Veterans Affairs (“DVA”) for disability benefits for a perforated small intestine and ensuing complications. In the course of proceedings on his claim, the Board of Veterans’ Appeals directed the regional office to obtain medical opinions on certain issues, including whether his condition following his colectomy “underwent a permanent increase in severity beyond its natural progression” during his period of active duty for training. The regional office denied service connection for Mr. Donnellan’s disability, relying on an examination report from a DVA physician who characterized Mr. Donnellan’s fistula as a “complication of his multiple surgical procedures.” On appeal, the Board found that the DVA physician’s report did not provide “adequate responses to the questions posed by the Board.” The Board therefore requested an independent medical opinion from another physician, Dr. Debra Ford, as to whether Mr. Donnellan’s “status post colectomy residuals under[went] a permanent increase in severity beyond its natural progression” during his active duty for training. Dr. Ford characterized the Board’s question as “somewhat confusing,” but stated that Mr. Donnellan’s active duty for training did not cause “the return of [his] fistulous disease.” She added, however, that in her opinion “he probably returned to duty too early.” In a March 2007 decision, the Board of Veterans’ Appeals denied Mr. Donnellan’s request for benefits. The Board began by applying the presumption embodied in 38 U.S.C. § 1153 that a disability is aggravated, for purposes of establishing service connection, if there is an increase in the level of the disability during a veteran’s service. That presumption, the Board held, applied to Mr. Donnellan’s period of active duty for training. The Board noted, DONNELLAN v. DVA 4 however, that the statutory presumption can be rebutted by clear and unmistakable evidence that the increase in disability was due to the natural progression of the disease. 38 C.F.R. § 3.306(b). After reviewing the record, the Board determined that there was clear and unmistakable evidence that Mr. Donnellan’s disease and the ensuing complications did not increase in severity beyond their natural progression during his period of active duty for training. Mr. Donnellan appealed the Board’s decision to the Veterans Court. He argued (1) that the Board improperly found that the presumption of aggravation was rebutted by the evidence of record, and (2) that the Board failed to ensure compliance with its remand instructions, because Dr. Ford had not answered the question posed to her. As to the first issue, the Veterans Court held that the statutory presumption of aggravation does not apply to an increase in the degree of a disability suffered by a member of the National Guard while on active duty for training. The court explained that because Mr. Donnellan had never served on active duty in the military, but was only on active duty for training, he had to establish his status as a veteran in order to be entitled to disability benefits. By statute, a “veteran” is a person who has served in “active military, naval, or air service.” 38 U.S.C. § 101(2). “Active duty for training” is considered “active military, naval, or air service,” but only if the person “was disabled or died from a disease or injury incurred or aggravated in line of duty.” 38 U.S.C. § 101(24)(B). The court held that to establish his status Mr. Donnellan needed to show both that his disability increased during active duty for training and that the increase was beyond the natural progression of the disease. In making that showing, according to DONNELLAN v. DVA 5 the court, Mr. Donnellan was not entitled to the statutory presumption of aggravation. As to the second issue, the court agreed with Mr. Donnellan that Dr. Ford’s medical opinion did not satisfy the Board’s instructions on remand. The court therefore remanded the case to the Board to obtain a medical opinion addressing the Board’s prior remand order. II On appeal, Mr. Donnellan argues that the Veterans Court erred in holding that he was not entitled to the statutory presumption of aggravation in attempting to show that he qualified as a “veteran.” The government defends the Veterans Court’s decision, but first argues that this court should dismiss the appeal because the Veterans Court’s decision is not final. Generally, we decline to review non-final orders of the Veterans Court, including remand orders. See Adams v. Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001). Mr. Donnellan acknowledges that the Veterans Court’s remand order is not a final decision. He contends that we should reach the merits of his appeal, however, as this case falls within an exception to the rule that we review only final decisions of the Veterans Court. See Williams v. Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002) (setting out the circumstances in which this court will entertain appeals from non-final orders of the Veterans Court). Tracking the criteria we have used to determine whether to entertain appeals from remand orders of the Veterans Court, Mr. Donnellan argues (1) that the Veterans Court’s ruling on the statutory presumption issue is a clear and final decision on the merits of his claim that will DONNELLAN v. DVA 6 govern the remand proceedings, (2) that it adversely affects him because it increases the evidentiary burden on him before the Board, and (3) that it may not survive remand. See Williams, 275 F.3d at 1364. As to the last of those points, he contends that he may be able to meet the burden imposed by the Veterans Court and prevail on his claim; if he does, the legal issue he seeks to present to this court will not reach this court in his case. We reject Mr. Donnellan’s reasoning and hold that the Veterans Court’s decision falls within the class of remand orders that we decline to review because they are not final. In this case, as in many others, the question whether we will review the remand order from the Veterans Court comes down to the third factor set forth in Williams—whether there is “a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue.” Williams, 275 F.3d at 1364. Several of our cases have fleshed out the meaning of that factor, and in so doing they have made clear that we will not review a remand order such as the one in this case. In particular, our cases establish that it is not enough that the Veterans Court “as part of a remand decision may have made an error of law that will govern the remand proceeding—even one that, if reversed, would lead to a decision in favor of the claimant.” Myore v. Principi, 323 F.3d 1347, 1352 (Fed. Cir. 2003). Rather, the legal issue in question must be one that would be effectively unreviewable at a later stage in the litigation. Id. The risk that a decided issue will not survive a remand does not include the possibility that the appellant will prevail on remand and therefore will not need to take another appeal. See id. at 1351-52 (test for whether issue may evade review is whether, if the claimant loses on DONNELLAN v. DVA 7 remand, the claimant will not be able to raise the issue on appeal from an adverse final judgment); Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). Rather, the remand action itself must “independently violate the rights of the veteran, for example, where a remand would be barred by statute.” Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir. 2006). That is, the appellant’s claim must be that he has a legal right not to be subjected to a remand. In such a case, the appellant’s argument that he has a right not to be forced to undergo a remand would necessarily and forever be lost if the case is remanded without an opportunity for appellate review of his claim. Our cases have applied that principle in a variety of settings. For example, in Adams we reviewed a remand order because the veteran claimed that he had a right to judgment without a remand, and “the order of the Veterans Court requiring him to undergo a remand before obtaining appellate relief would defeat the very right he asserts, i.e., his right to an immediate judgment without the necessity of a remand.” 256 F.3d at 1321. Likewise, in Stevens v. Principi, 289 F.3d 814, 817 (Fed. Cir. 2002), this court entertained an appeal from a remand order because the claimant argued that the remand was “ordered for a prohibited purpose” and that he was “entitled to a decision in his favor without the need for a remand.” In that case, we held that the appeal fell within the exception to the rule against entertaining non-final orders because the appellant’s claim was that the remand order adversely affected him “by violating his right to an immediate decision on his claim,” id., a right that, if he was correct in his assertion, would be lost by the very act of remanding. DONNELLAN v. DVA 8 In Byron v. Shinseki, 670 F.3d 1202 (Fed. Cir. 2012), we reiterated the requirements for finding that a case falls within the exception to the rule regarding non-final appeals. The Veterans Court in that case made a legal determination that it did not have the authority to consider evidence and make factual findings in the first instance when the Board had failed to do so. The court therefore remanded the case to the Board to make such findings. We addressed the issue of the Veterans Court’s authority because, if we had not, the veteran’s claim that the Veterans Court has the legal authority to make factual findings in the first instance would never have been subject to review, regardless of whether the veteran had won or lost in the remand proceedings before the Board. In this case, Mr. Donnellan’s argument is not that he has a legal right not to undergo a remand, but rather that the remand proceedings should be conducted under a different legal standard than that ordered by the Veterans Court. As such, this is a classic case of a non-final order: Even if we were to address the merits and uphold Mr. Donnellan’s legal claim, the case would still have to be remanded for further proceedings under that standard. For that reason, this case does not fit into the exception to our rule against entertaining appeals from non-final orders of the Veterans Court. Instead, it is a case like many others in which remand proceedings have been ordered under standards that the appellant does not agree with. Were we to accept Mr. Donnellan’s framing of the exception to the rule against review of remand orders, the exception would swallow the rule. Because our review of decisions of the Veterans Court is typically limited to legal issues, 38 U.S.C. § 7292(d)(2), remand orders that we are asked to review are generally those in which the DONNELLAN v. DVA 9 Veterans Court has decided a legal issue that will govern the remand proceedings. And in virtually any case that is remanded, it is possible that the veteran will win even under the legal standard adopted by the Veterans Court. (Otherwise, why the remand?) Because this is not a case in which the veteran’s claim is that he has a legal right not to be forced to undergo a remand, we hold that the remand order in this case falls within the category of nonfinal orders that we decline to review. No costs. DISMISSED

Federal Circuit, Guillory v. Shinseki, No. 2011-7047 (Decided: January 3, 2012)

United States Court of Appeals for the Federal Circuit __________________________ JOHN L. GUILLORY, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7047 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case no. 06-2926, Judge Lawrence B. Hagel. ___________________________ Decided: January 3, 2012 ___________________________ MARK A. DELPHIN, Delphin Law Offices, PC, of Lake Charles, Louisiana, for claimant-appellant. SCOTT D. AUSTIN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Depart-ment of Justice, of Washington, DC, argued for respon-dent-appellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Direc-tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy GUILLORY v. DVA 2 Assistant General Counsel, and BRIAN D. GRIFFIN, Attor-ney, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before LINN, DYK, and REYNA, Circuit Judges. DYK, Circuit Judge. John L. Guillory (“Guillory”) appeals from a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”). The Veterans Court affirmed the Board of Veterans’ Appeals (“the Board”) decision finding no clear and unmistakable error (“CUE”) in decisions declining to award him additional special monthly com-pensation for aid and attendance retroactive to 1966. Guillory v. Shinseki, No. 06-2926, 2010 WL 4239763 (Vet. App. Oct. 28, 2010). We affirm. BACKGROUND This is the second appeal arising from this case and the background is set forth in more detail in this court’s previous decision. Guillory v. Shinseki, 603 F.3d 981, 984–86 (Fed. Cir. 2010) (“Guillory I”). In short, Guillory asserted that as a result of service-related injuries, he suffered, inter alia, complete loss of use of his entire right arm and of both legs from the waist down, as well as injuries to his buttocks, thighs, hips, and torso. He was honorably discharged on October 27, 1966. In a June 1967 regional office (“RO”) decision, Guillory was awarded, effective on the date of his discharge, compensa-tion at the total disability rate under 38 U.S.C. § 314(j) (1964),1 additional special monthly compensation at the 1 At the time of Guillory’s first claim for disability compensation, the statutory provision governing disability compensation was found at 38 U.S.C. § 314 (1964). This provision was subsequently recodified at 38 U.S.C. § 1114. 3 GUILLORY v. DVA rate between subsections (l) and (m), and an award under subsection (k). The RO did not award Guillory aid and attendance because the law in 1967 required the veteran to have a special monthly compensation rating of (o) to be eligible. 38 U.S.C. § 314(r) (1964). In 1970, the RO determined that there was CUE in the 1967 decision and awarded Guillory special monthly compensation under subsection (m) based on the loss of use of his legs in addition to an award under subsection (k) for the loss of use of his right hand, retroactive to October 27, 1966. Guillory nonetheless fell short of the (o) rating required for aid and attendance at that time. Over the next decade, due to intervening changes in the law, Guillory’s rating increased two half-steps to the rate under subsection (n). In 1979, the law was amended to provide that a veteran is eligible for aid and attendance if he is entitled to receive either (1) at least the rate under subsection (o) or (2) the intermediate rate between sub-sections (n) and (o) (sometimes referred to as “(n ½)”) and a separate award under subsection (k). Veterans’ Disabil-ity Compensation and Survivors’ Benefits Amendments of 1979, Pub. L. No. 96-128, § 104, 93 Stat. 982, 984. Guillory’s case was not reviewed again until 1992, at which time the RO granted service connection for a sei-zure disorder and awarded Guillory a 100% disability rating. Because this additional independent disability qualified Guillory for a full-step increase in his special monthly compensation rating from (n) to (o) pursuant to 38 C.F.R. § 3.350(f)(4), and because he was receiving compensation under subsection (k), he was then eligible Department of Veterans Affairs Codification Act, Pub. L. No. 102-83, § 5, 105 Stat. 378, 406 (1991). Throughout the opinion, we cite to the statutes applicable as of the date of the relevant RO decision. GUILLORY v. DVA 4 for and was awarded aid and attendance under subsection (r), effective May 1991, the date of the seizure diagnosis. In September 2001, Guillory asserted a claim of CUE based on the RO’s failure to award him special monthly compensation for aid and attendance effective the date of his original rating in 1966. He appealed an adverse RO decision to the Board in 2003, making two specific claims for earlier entitlement to aid and attendance. First, Guillory argued that the date of onset for his seizure disorder was earlier than May 1991. Second, he argued that the ratings in the initial 1967 RO decision did not properly account for the loss of use of his right and left trunk through the knee and buttocks. The Board con-cluded in its 2003 decision that the various ratings deci-sions in Guillory’s case were not the product of CUE. On appeal, the Veterans Court remanded for further consid-eration of both of Guillory’s claims. In its 2006 remand decision, the Board again refused to assign an effective date for aid and attendance before May 1991, holding that there was no CUE in the refusal to grant an earlier effective date for his seizure disorder. The Board, however, did not specifically address Guillory’s second claim related to the additional injuries to his trunk and buttocks. On appeal, the Veterans Court held that it did not have jurisdiction over Guillory’s claims of CUE for the RO’s failure to independently rate him for his additional injuries because the issue had not been preserved. In Guillory I, we reversed the Veterans Court’s deci-sion that it lacked jurisdiction. 603 F.3d at 986–87. We held that Guillory had in fact always maintained, and the Board had addressed in its 2003 decision, “the contention that he was mistakenly rated independent of the seizure disorder, due to the loss of use of his right and left trunk 5 GUILLORY v. DVA through knee and buttocks, thus entitling him to a higher rating retroactive to 1966.” Id. at 987. We remanded to the Veterans Court to address this claim on the merits. Id. On remand, the Veterans Court considered Guillory’s arguments but found that it was “clear from the Board’s discussion that the prior regional office decisions ac-counted for Mr. Guillory’s complaints regarding the loss of use of his right and left trunk through the knees, includ-ing the buttocks, when they evaluated his condition under subsection (m).” Guillory, 2010 WL 4239763, at *7. The Veterans Court held that because “Mr. Guillory’s argu-ments amount[ed] only to a disagreement with how the facts were weighed by the regional office,” “the Board’s finding of no clear and unmistakable error in the previous regional office decision[] [was] not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ and [was] supported by an adequate statement of reasons or bases.” Id. at *8 (quoting 38 U.S.C. § 7261(a)(3)(A)). Guillory timely appealed the Veterans Court’s deci-sion, and jurisdiction is asserted under 38 U.S.C. § 7292(a). DISCUSSION I At the outset, the VA challenges our jurisdiction over this appeal. Pursuant to 38 U.S.C. § 7292(a), as amended in 2002, this court has appellate jurisdiction “with respect to the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on by the Court in making the decision.” Despite the VA’s arguments to the contrary, Guillory makes arguments concerning the GUILLORY v. DVA 6 interpretation of the governing disability compensation statutes and regulations in his favor. Because “the deci-sion below regarding a governing rule of law would have been altered by adopting the position being urged [by Guillory], this court has [‘rule of law’] jurisdiction to entertain the matter.” Wilson v. Principi, 391 F.3d 1203, 1208 (Fed. Cir. 2004) (quoting Morgan v. Principi, 327 F.3d 1357, 1363 (Fed. Cir. 2003)). Accordingly, this court may decide all relevant questions of law, 38 U.S.C. § 7292(d)(1), and legal determinations of the Veterans Court are reviewed de novo. Willsey v. Peake, 535 F.3d 1368, 1372 (Fed. Cir. 2008). II The issue is whether the Veterans Court correctly in-terpreted the disability compensation scheme in deter-mining that there was no CUE in the decision to deny Guillory aid-and-attendance benefits back to 1966, not whether the application of the law to the particular facts of this case was correct. See Willsey, 535 F.3d at 1372. In 1967, when Guillory first filed a claim for compensation under the VA’s disability compensation scheme, the statute governing aid and attendance provided: “If any veteran, otherwise entitled to the compensation author-ized under subsection (o) of this section . . . is in need of regular aid and attendance, he shall be paid, in addition to such compensation, a monthly aid and attendance allowance . . . .” 38 U.S.C. § 314(r) (1964). The VA does not dispute that, as early as 1966, the evidence demon-strated that Guillory was “in need of regular aid and attendance.” Resp’t-Appellee’s Br. 39. The parties dis-agree, however, as to whether the other statutory criteria were met at that time. Guillory makes two primary arguments that he met the statutory requirements for aid and attendance in 1967 7 GUILLORY v. DVA and thus that the initial 1967 RO decision was the prod-uct of CUE. First, Guillory argues that in 1967 he should have qualified for the rate under subsection (o), and thus aid and attendance, because he “suffered disability under conditions which would entitle him to two or more of the rates provided in one or more subsections (l) through (n) of [§ 314], no condition being considered twice in the determination.” 38 U.S.C. § 314(o) (1964). Specifically, he argues that he was entitled to at least two of the following rates: (1) a rate under subsection (l) for having lost a hand and a foot; (2) a rate under subsection (m) for having suffered the loss of use of “two extremities [his legs] . . . preventing natural . . . knee action with prosthe-sis in place”; and (3) a rate under subsection (n) for having lost “two extremities [i.e., his legs] so near the . . . hip as to prevent the use of a prosthetic appliance.”2 See id. § 314(l)–(n). Guillory asserts that, under a proper inter-pretation of subsection (o), these awards would not be duplicative. This issue turns on whether the restriction in subsec-tion (o) that “no condition be[] considered twice” should be interpreted to allow a veteran to recover separately for 2 Guillory also alleges CUE in the 1967 RO decision because he was originally awarded for only the loss of use of one hand and one foot. This error, however, was al-ready corrected in subsequent RO decisions that found CUE in the 1967 decision, and Guillory was awarded benefits retroactively to October 27, 1966, the date of his discharge. See Guillory v. Peake, No. 06-2926, 2008 WL 5155291, at *1 (Vet. App. Dec. 9, 2008). When it is found that a decision by an RO contains CUE, it is “revised” to correct the error and it “has the same effect as if the decision had been made on the date of the prior decision.” 38 U.S.C. § 5109A(a)–(b). When the RO found CUE in its 1967 decision, the decision was effectively revised to no longer contain the error. Thus, the 1967 RO decision no longer contains this error alleged by Guillory. GUILLORY v. DVA 8 the loss of use of his legs and the loss of use of his feet. The VA regulations interpreting this requirement in 1967 stated that “[d]eterminations must be based upon sepa-rate and distinct disabilities.” 38 C.F.R. § 3.350(e)(2) (1967). Concluding that the loss of use of a foot is a separate and distinct injury from the loss of use of the leg would allow any veteran who anatomically lost both of his legs under subsection (n) to automatically qualify for a higher rate under subsection (o) because he necessarily would also have anatomically lost both of his feet under subsec-tion (l). This would render part of subsection (n) meaning-less because veterans who anatomically lost both legs would always be covered by subsection (o). We also note that a separate regulation, in discussing the bilateral factor for combining disabilities, states: “The use of the term[] . . . ‘legs’ is not intended to distinguish between the . . . thigh, leg, and foot, but relates to the . . . lower ex-tremities as a whole.” 38 C.F.R. § 4.26(a) (1967). This distinction is equally applicable here. Thus, it is clear that an injury to a leg subsumes any injury to the foot, and that Guillory’s interpretation is in error. The Veter-ans Court did not err in holding that the loss of use of a foot is subsumed within, and not separate and distinct from, the loss of use of a leg. Guillory’s second argument is that in the 1967 RO de-cision he was not awarded for other injuries, particularly the loss of use of his buttocks, which should have entitled him to an additional half-step increase under 38 C.F.R. § 3.350(f)(3), thus putting him at the rate between subsec-tions (n) and (o) and entitling him to aid and attendance. To be eligible for a half-step increase, “the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different ana-tomical segments or bodily systems from the conditions 9 GUILLORY v. DVA establishing entitlement under 38 U.S.C. 314 (l) through (n).” 38 C.F.R. § 3.350(f)(3) (1967). Because Guillory was entitled to special monthly compensation under subsec-tion (m) based on the loss of use of his legs, there is a question here whether, under this regulation, an injury to the legs is “separate and distinct and involve[s] different anatomical segments” from injuries to buttocks, hips, and trunk. We need not resolve this question, though, since the premise of Guillory’s argument misinterprets the relevant statutes. Because Guillory’s claim requires a showing of CUE in the 1967 RO decision, we must assess his claim based on 1967 law. The law in 1967 required a rating under subsection (o) to qualify for aid and attendance. See 38 U.S.C. § 314(r) (1964). The law was not changed to allow aid and attendance based on an (n ½) + (k) rating until 1979. Veterans’ Disability Compensation and Sur-vivors’ Benefits Amendments of 1979, Pub. L. No. 96-128, § 104, 93 Stat. 982, 984. Thus, even if Guillory were entitled to an (n ½) rating in the 1967 RO decision based on an additional half-step increase for his additional injuries, an issue we do not decide, he still would not be eligible for aid and attendance at that time. Finally, we note that Guillory appears to urge on appeal two arguments not raised below. Guillory argues that awards should have been made in 1967 for the loss of use of both thighs, both buttocks, both hips, and the upper right torso, thus entitling him to two full-step increases to the rating under subsection (o) and, therefore, to aid and attendance. Guillory, however, did not raise this particular argument before the Veterans Court or the Board. So too the issue of whether Guillory was entitled to an additional half-step increase in 1979, after the statutory change, based on his buttocks or other injuries—thus giving him an award of (n ½) + (k) and entitling him to GUILLORY v. DVA 10 aid and attendance due to the intervening change in law—was not raised or addressed below, nor is it clear how such a claim would be supported by a CUE theory. Because these arguments were not raised below, we do not address them here. If Guillory wishes to pursue either of these theories, he must first raise them with specificity before the RO. All of Guillory’s remaining arguments are disagreements with how the facts were weighed or how the law was applied to the facts in this particular case, which we do not have jurisdiction to review. 38 U.S.C. § 7292(d)(2). Based on our interpretations of the statutes at issue, we see no error in the Veterans Court opinion and therefore affirm. AFFIRMED COSTS No costs.