  United States Court of Appeals for the Federal Circuit
                                       2007-7060


                                  JOHN E. JENNINGS,

                                                            Claimant-Appellant,

                                            v.


             GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

                                                            Respondent-Appellee.


      Heather R. Cessna, ABS Legal Advocates, P.A., of Lawrence, Kansas, argued for
claimant-appellant. On the brief was Virginia A. Girard-Brady.

       Tara K. Hogan, Trail Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent-appellee. With
her on the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson,
Director, and Bryant G. Snee, Deputy Director. Of counsel on the brief were Michael J.
Timinski, Deputy Assistant General Counsel, and Ethan G. Kalett, Attorney, United States
Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Associate Judge Lawrence B. Hagel
 United States Court of Appeals for the Federal Circuit

                                      2007-7060

                                 JOHN E. JENNINGS,

                                                            Claimant-Appellant,

                                           v.


             GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

                                                            Respondent-Appellee.

                           ___________________________

                           DECIDED: November 20, 2007
                           ___________________________


Before NEWMAN and DYK, Circuit Judges, and YEAKEL, District Judge. *

DYK, Circuit Judge.

      Appellant John E. Jennings (“Jennings”) appeals from a decision of the United

States Court of Appeals for Veterans Claims (“Veterans Court”). The Veterans Court

affirmed a decision of the Board of Veterans’ Appeals (“Board”) denying Jennings’s

claim of clear and unmistakable error (“CUE”) in two ratings decisions issued in 1954.

We affirm.

                                   BACKGROUND

      Jennings served on active duty in the United States Army from October 1952

until his medical discharge in May 1954.        His pre-induction medical examination

indicated that he had “dizziness and fainting spells, frequent indigestion, and stomach,

      *
             Honorable Lee Yeakel, District Judge, United States District Court for the
Western District of Texas, sitting by designation.
liver, and intestinal problems,” but nonetheless he was found qualified for induction.

Jennings v. Nicholson, Vet. App. No. 04-0338, slip op. at 1 (Sept. 26, 2006). Jennings

was hospitalized several times during service. The records from one such occasion,

when Jennings was hospitalized in July 1953 for leg pain, state under “pertinent history”

that Jennings reported a “many year history of ‘colitis.’” J.A. at 31. Eventually he was

found unfit for military duty because he suffered from ulcerative colitis, and he was

discharged in April 1954.

      In June 1954 Jennings filed a claim for service connection for ulcerative colitis.

The Department of Veterans Affairs (“VA”) regional office (“RO”) denied this claim on

September 15, 1954, finding that Jennings’s ulcerative colitis “obviously existed prior to

his military service” and had “improved at time of discharge.” Jennings v. Nicholson,

Vet. App. No. 04-0338, slip op. at 3 (quoting RO decision). On October 1, 1954, Dr.

Joseph T. Lang, Jennings’s private physician, sent a letter to the VA stating that he had

treated Jennings for two years prior to his military induction, for a cold and an ankle

injury, and that during that time Jennings had “revealed no evidence of colitis” and did

not “have any complaints signifying colitis.” J.A. at 222. The RO subsequently issued a

second rating decision on October 8, 1954, affirming its earlier denial of service

connection “based upon all the evidence of record,” including Dr. Lang’s letter. J.A. at

219. Consistent with the regulations then in effect, the letter notifying Jennings of this

decision, dated October 12, 1954, stated that, if Jennings had no further evidence to

submit, he had one year from the date of the letter in which to appeal the RO’s decision.

See 38 C.F.R. § 3.7 (1954). Jennings did not file an appeal.




2007-7060                               2
      In May 1995, Jennings filed an application that was construed by the VA as an

attempt to reopen his claim for service connection on new and material evidence

grounds. During the development of this claim, Jennings testified that the service-time

hospital records (showing that he reported a history of colitis) were incorrect. See In re

Jennings, No. 96-06 401 (Bd. Vet. App., June 9, 1997).         Although the RO denied

Jennings’s claim to reopen, the Board found that Jennings’s testimony constituted new

and material evidence and directed the RO to reopen the claim. See id. The Board

explained that “the hearing testimony is relevant and probative of the issue of service

connection . . . and raises a reasonable possibility of changing the outcome of the

previous decision.” Id. The Board ordered additional development of the record in light

of two changes in law since Jennings’s 1954 claim: first, recorded clinical data from

service medical records could no longer be used to rebut the presumption of soundness

at enlistment; and second, claims could no longer be denied “based on the medical

judgment of the members of the rating board,” rather than on independent medical

opinions. Id. The Board in 1998 ultimately granted service connection for ulcerative

colitis, with compensation retroactive to the 1995 application to reopen, because it

found the evidence insufficient to rebut the presumption of soundness at enlistment.

      Thereafter, on September 28, 1999, Jennings filed a request to reopen the 1954

RO decision on grounds of CUE, claiming that the RO had committed CUE in 1954 in

two ways.    First, he argued that the RO had failed to apply the presumptions of

soundness and aggravation, and that the requisite “clear and unmistakable evidence to

establish that his condition preexisted service” was not present. Jennings v. Nicholson,

Vet. App. No. 04-0338, slip op. at 5-6; see also 38 C.F.R. § 3.79 (1954) (setting out the




2007-7060                               3
presumptions of soundness and aggravation). Second, Jennings argued that it was

CUE for the RO to find that Dr. Lang’s letter was not new and material evidence.

       On November 7, 2003, the Board found no CUE in the 1954 decisions. In its

decision the Board outlined the three-pronged test for CUE: 1) whether the correct

facts, as known at the time, were not before the adjudicator or the existing statutes and

regulations were incorrectly applied; 2) whether the error was undebatable and of the

sort that would have “manifestly changed the outcome at the time it was made”; and 3)

that the finding of CUE must be “based on the record and the law that existed at the

time of the prior adjudication in question.” In re Jennings, No. 02-08 796A (Bd. Vet.

App., Nov. 7, 2003). As to the first prong, the Board found that “the RO’s decisions

were in accordance with the applicable laws and regulations, and that the evidence of

record adequately supported the decisions.” Id. The Board noted that the RO had

considered the presumptions of soundness and aggravation, and that there was an

evidentiary basis for concluding that those presumptions were rebutted. The Board

found no evidence in the 1954 record of “an opinion relating the veteran’s ulcerative

colitis to his service,” and noted that Dr. Lang’s letter did not constitute objective

evidence of a causal link between Jennings’s service and his ulcerative colitis. Id.

Finally, the Board noted that even assuming the RO committed some error, it would not

have “manifestly changed the result” because “there was no evidence of record that the

veteran’s ulcerative colitis was incurred or aggravated during his service.” Id.

       On September 26, 2006, the Veterans Court affirmed the Board’s disposition of

the CUE claim, finding that “the proper weight to apply to [the evidence] is not a

sufficient basis upon which to base a claim of clear and unmistakable error.” Jennings




2007-7060                                4
v. Nicholson, Vet. App. No. 04-0338, slip op. at 7. The Veterans Court also rejected

Jennings’s argument that the Board had erred by failing to provide a written statement

of the reasons or bases for its conclusions, as required by 38 U.S.C. § 7104(d)(1).

Jennings based this argument on the Board’s failure to state explicitly that rebuttal of

the presumption of soundness required “that the government prove by clear and

unmistakable evidence that a veteran’s condition preexisted service.”        Jennings v.

Nicholson, Vet. App. No. 04-0338, slip op. at 8. The court agreed that the Board had

not used the phrase “clear and unmistakable evidence” in reviewing whether the RO

had committed CUE, but noted that the Board’s findings were based on a review of all

the evidence before the RO in 1954, and that the Board had discussed the RO’s

application of the presumptions of soundness and aggravation. The court concluded

that “[b]ecause failure to expressly base a decision upon a finding of ‘clear and

unmistakable evidence’ would not necessarily result in a finding of clear and

unmistakable error in the regional office decision,” Jennings had failed to show any

prejudicial error in the Board’s 2003 decision. Id.

       Jennings timely appealed to this court.        We have jurisdiction pursuant to 38

U.S.C. § 7292(a).

                                      DISCUSSION

       This case presents two issues. First, Jennings contends that the Board erred in

failing to specifically refer to the “clear and unmistakable evidence” standard for

rebutting the presumptions of soundness and aggravation. Jennings argues that this

failure constitutes a violation of 38 U.S.C. § 7104(d)(1), which requires all decisions of

the Board to “include a written statement of the Board’s findings and conclusions, and




2007-7060                                5
the reasons or bases for those findings and conclusions, on all material issues of fact

and law presented on the record.”

      We reject the contention that section 7104(d)(1) requires the Board to use

particular statutory language, or “terms of art,” Appellant’s Br. at 16, in addressing

claims. 1 Section 7104(d)(1) was enacted as part of the Veterans’ Judicial Review Act

(“VJRA”). See Pub. L. No. 100-687, § 205, 102 Stat. 4105, 4111 (1988). The VJRA

established the Veterans Court and provided for review by that tribunal of certain Board

decisions. As the legislative history to the VJRA makes clear, section 7104(d)(1) was

“designed to promote the development of a record of the agency proceedings that

would permit a reviewing court to understand and evaluate the proceedings as part of

its review.” S. Rep. No. 100-418, at 37-38 (1988). The required statement of reasons

or bases would enable claimants to “understand the Board’s response to the various

arguments advanced by the claimant,” and use this understanding “to make an informed

decision on whether or not to request court review.” Id. at 38. Neither the reviewing

court nor the claimant would be aided in this regard by “bare conclusory statement[s]” in

Board decisions; rather, the VJRA required “clear analysis and succinct but complete

explanations.” Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

      While section 7104(d)(1) plainly requires the Board to set forth its reasoning,

mechanical requirements such as the one proposed by Jennings in this case are not

necessary to facilitate effective judicial review by the Veterans Court and informed



      1
             We note, and Jennings concedes, that the 1954 RO rating decisions were
not required to recite the specific standard of proof for rebutting the presumptions of
soundness and aggravation. See Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir.
2004) (finding such recitations not required for rating decisions that predate the
Veterans’ Benefits Amendments of 1989).


2007-7060                               6
decisionmaking by claimants. See, e.g., Morris v. Principi, 239 F.3d 1292, 1296 (Fed.

Cir. 2001) (refusing to require the Board to explain its reasoning in the section of its

opinion entitled “Reasons and Bases” rather than in the “Introduction”). In this case, the

basis for the Board’s rejection of Jennings’s CUE claim is clear despite the Board’s

failure to state the precise standard applicable to its review. The Board recognized the

presumptions of soundness and aggravation, thoroughly discussed the evidence before

the RO in 1954, identified the evidentiary bases for the RO to conclude that the

presumptions of soundness and aggravation were rebutted, and concluded that Dr.

Lang’s letter did not compel a determination of service connection. The Board’s opinion

explained that “[t]he Disposition Board Proceeding report’s opinion that the veteran’s

ulcerative colitis existed prior to service provided an evidentiary basis to conclude the

presumption of soundness was rebutted,” and that “[t]he RO’s determination were

clearly supported by the veteran’s service medical records, which . . . indicated that the

veteran’s ulcerative colitis preexisted his service and was not permanently aggravated

during his service.” In re Jennings, No. 02-08 796A (Bd. Vet. App., Nov. 7, 2003).

       We find no reason to believe that section 7104(d)(1) was designed to work an

across the board elimination of the presumption of regularity.           A presumption of

regularity applies to “official acts of public officers,” and allows us, “[i]n the absence of

clear evidence to the contrary,” to “presume[] that public officers have properly

discharged their official duties.” Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001)

(citing United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)); see also

Bernklau v. Principi, 291 F.3d 795, 801-02 (Fed. Cir. 2002) (presuming that Veterans

Court weighed competing interests when declining to hear new arguments, although the




2007-7060                                 7
court did not explicitly state that it was doing so); Pierce v. Principi, 240 F.3d 1348, 1356

(Fed. Cir. 2001) (affirming Veterans Court’s application of presumption of regularity to

assume that RO had made a requisite finding). In situations such as this, where the

Board has explained its decision in detail and has made clear the reasons and bases for

the decision, and in substance has articulated the correct burden of proof (here by

stating that the rebuttal of the presumptions was “clearly supported”), the Veterans

Court can properly assume that the Board applied the correct standard. Applying the

presumption of regularity does not violate section 7104(d)(1).

       Second, Jennings argues that in rejecting his CUE claim the Board and the

Veterans Court improperly required him to establish clear and unmistakable error in the

RO’s failure to award benefits in 1954. Both tribunals, in applying the CUE standard to

Jennings’s claim, looked at whether Jennings had shown any clear and unmistakable

error that would have caused the RO in 1954 to award service connection. Jennings

argues, however, that the correct test is whether there was a clear and unmistakable

error in the RO’s determination that Dr. Lang’s letter was not new and material

evidence, but for which error the RO would have reopened his claim in October 1954.

Jennings does not clearly articulate the consequences of such a finding of CUE in the

failure to reopen.

       We have held that in order to establish CUE the claimant must show the

existence of “an error that would manifestly change the outcome of a prior decision.”

Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999). We have not previously had

occasion to determine the meaning of “manifestly change the outcome” in the context of

a CUE claim with respect to an earlier new and material evidence claim, i.e., whether




2007-7060                                 8
the veteran must establish CUE in the failure to reopen or CUE in the failure to award

benefits. Nor need we do so here, because we agree with the government that the

submission of Dr. Lang’s letter in October 1954 was not a motion to reopen on grounds

of new and material evidence. Rather it was merely an effort to supplement the record

in a proceeding that had not yet become final.

       Under prevailing regulations, the September 1954 denial of service connection

would not have become final for one year. See 38 C.F.R. § 3.201(e) (1949) (“Decisions

of adjudicating agencies of original jurisdiction do not become final until the expiration of

the time within which an appeal may be filed.”). The regulations provided that “evidence

received prior to the expiration of the appeal period will be considered by the

adjudicating agency of original jurisdiction and an appropriate determination made.” Id.

Jennings argues that the language in the “Confirmed and Continued Rating Sheet” he

received in October 1954 (stating that the letter from Dr. Lang did not “contain any new

and material evidence”) demonstrates that the letter constituted an application to reopen

his claim. Jennings contends that this constitutes a finding that the letter was not new

and material evidence under the applicable standard for reopening finally disallowed

claims. See 38 C.F.R. § 3.201(a) (1954).

       The “new and material evidence” language in the printed form (the rating sheet)

evidently was designed to cover multiple situations, including new and material

evidence applications. However, the plain language of the regulations makes clear that

the September 1954 decision was not yet final when Dr. Lang’s letter was submitted.

The regulations provided that only final decisions were subject to reopening based on

new and material evidence. 38 C.F.R. § 3.201(a) (1954) (“New and material evidence .




2007-7060                                 9
. . submitted subsequent to the final disallowance of the claim, will constitute a new

claim and have all the attributes thereof . . . .”) (emphasis added). The letter from Dr.

Lang was “evidence received prior to the expiration of the appeal period,” not “evidence

. . . submitted subsequent to the final disallowance of the claim,” and the RO treated it

accordingly.

      The current statutory and regulatory scheme, while more procedurally detailed,

similarly provides that claimants have one year in which to appeal an RO decision

denying service connection, and that new evidence received prior to the expiration of

that one-year time period (or, if an appeal already has been taken, prior to the appellate

decision) is to be considered as having been filed in connection with the original claim.

See 38 U.S.C. § 7105(b)(1), (c) (providing one year in which to file a notice of

disagreement, after which time the RO decision becomes final); 38 C.F.R. § 3.156(b)

(2007).

      Accordingly, we hold that a claim becomes final and subject to a motion to

reopen only after the period for appeal has run. Any interim submissions before finality

must be considered by the VA as part of the original claim. In this case, as the VA

stated in its letter to Jennings, the RO considered all of the evidence in October 1954 as

part of the original claim, not as a motion to reopen. See J.A. at 219 (“Your claim for

disability benefits has been carefully reviewed based upon all the evidence of record

including a statement of Dr. Joseph T. Lang, dated October 1, 1954.”). Therefore, in

order to prevail on his claim of CUE, Jennings was required to show a clear and

unmistakable error that manifestly would have changed the RO’s decision to deny

benefits in 1954. There has been no such showing here.




2007-7060                               10
                                  CONCLUSION

     For the foregoing reasons, the decision below is

                                   AFFIRMED.

                                     COSTS

     No costs.




2007-7060                            11
