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![Single Judge Application; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 RO decision. Specifically, he contends that Wagner is an authoritative statement of what section 311 meant at the time of the 1981 RO decision. Appellant’s Brief (Br.) at 6. The Court agrees with the appellant that the Federal Circuit’s interpretation of section 1111 in Wagner is an authoritative statement of what that statute has meant since the date of enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); Patrick v. Shinseki, 668 F.3d at 1325, 1329 (Fed. Cir. 2011) (“We made clear . . . , that ‘[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.’” (quoting Patrick v. Nicholson, 242 F. App’x 695, 698 (Fed. Cir. 2007)(remanding for further consideration of CUE request using the correct standard articulated in Wagner and directing remand to Board, if necessary, to determine whether the Secretary has rebutted the presumption of soundness by providing clear and unmistakable evidence that the presumption has been rebutted))); see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005) (noting that the appellant’s CUE request challenges the validity of a regulation but does not question the correct legal standard under the statute, and that “Wagner governs that issue”). Thus, the Court agrees with the appellant that the Board erred when it concluded that he could not challenge the correct legal standard that applies under section 1111 in the CUE context.;](https://hadit.com/wp-content/uploads/tshirt-Hadit.com-Business-Card-Back-3-1024x585.png)
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![Single Judge Application; “The [U.S. Court of Appeals for the] Federal Circuit made it clear that the Board is not bound by [M21-1] ; Overton, 30 Vet.App. at 264 (“[T]he Board is required to discuss any relevant provisions contained in the M21-1 . . . , but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-l provision . . . .”); It is unclear how the Board came to this conclusion that consistent and prolonged exposure was required because that language is not found within the M21-1 provision that was provided to appellant as a reference for establishing presumptive service connection; Andrews v. McDonough, __ Vet.App. , , No. 19-0352, 2021 U.S. App. Vet. Claims LEXIS 1091, at *17-20 (June 22, 2021) (“[T]he VA ma y [not] tell a veteran how to establish a service connection for his [condition] only to move the goalposts once he has done so. This kind of goalpost-moving does not reflect an optimal mode of administrative decisionmaking.” (quoting Hudick v. Wilkie, 755 F. App’x 998, 1006-07 (Fed. Cir. 2018)));](https://hadit.com/wp-content/uploads/2016/05/hadit_logo_banner-001-Edited.png){kind=logo}
Single Judge Application; “The Federal Circuit made it clear that the Board is not bound by ; Overton, 30 Vet.App. at 264 (“he Board is required to discuss any relevant ...
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