Westervelt v. Collins — Board must address both VA-initiated CUE and the underlying rating issue

Army veteran Edward T. Westervelt had a 70% rating for TBI when VA later awarded a separate 30% rating for PTSD. A DRO concluded that the separate PTSD award was clear and unmistakable error because the evidence showed the PTSD and TBI symptoms could not be differentiated, and revised the decision to combine the conditions at 70% under the anti-pyramiding rule. The veteran appealed, arguing that the Board had to address the propriety of the CUE finding as well as the merits of his PTSD evaluation.

The Court agreed that the CUE issue was properly before the Board, explaining that the DRO review process under 38 C.F.R. § 3.2600 did not create a new operative NOD and did not eliminate the veteran’s original appeal. The Court also held that the Board still had to address the underlying rating question on direct appeal. Because the Board had not fully resolved both intertwined issues in a single decision, the Court vacated in part and remanded for readjudication. The Court also rejected additional arguments that the DRO could not revise a nonfinal decision and that reduction procedures under 38 C.F.R. § 3.105(e) applied.

Practically, the decision reinforces that when VA revises a decision for CUE during legacy DRO review, the Board must still address the appealed rating issue on the merits. It also confirms that CUE-based revisions under § 3.2600 can apply to nonfinal decisions and are not treated as ordinary compensation reductions.

In legacy DRO review, a CUE-based revision of a prior rating decision can be made even before finality, but the Board must separately address both the CUE determination and the underlying appealed rating issue when both remain material to the claim.

VA cannot use a DRO CUE revision to sidestep full Board review of the disability evaluation that remains on appeal.

The case clarifies appellate sequencing in legacy claims involving DRO revisions and overlapping diagnoses. It is especially useful where VA combines or separates ratings based on anti-pyramiding and the record contains competing medical opinions on whether symptoms can be distinguished.

Failing to decide the appealed rating question after revising a prior decision for CUE during DRO review.

A veteran receives a separate rating for a second diagnosis, but a DRO later revises the award as CUE because symptoms overlap with an existing service-connected condition. On appeal, the Board must still decide whether the veteran is entitled to a higher rating or a separate rating under the evidence and applicable rating principles.

Use this case to argue that a Board decision is incomplete when it resolves only the CUE issue or only the rating issue in a legacy appeal. It also supports challenging attempts to treat a DRO revision as if it were an ordinary rating reduction subject to different procedures.

Hamilton v. Brown, Young v. Wilkie, Esteban v. Brown, Dunlap v. Nicholson, Anderson v. Shinseki, Smith v. Gober