UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 16-3988 HAL H. WILLIAMS, APPELLANT, V. ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued October 23, 2018 Decided September 13, 2019) Meghan Gentile, with whom Katie K. Molter, was on the brief, all of Arlington, Virginia, for the appellant. Timothy G. Joseph, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; Selket N. Cottle, Deputy Chief Counsel; and Lindsay J. Gower, Appellate Attorney, were on the brief, all of Washington, D.C., for the appellee. Before BARTLEY, TOTH, and FALVEY, Judges. BARTLEY, Judge: Veteran Hal H. Williams appeals through counsel an August 26, 2016, Board of Veterans' Appeals (Board) decision finding no clear and unmistakable error (CUE) in a January 1970 rating decision that denied service connection for residuals of a left knee injury; and denying an effective date earlier than May 18, 2009, for the grant of service connection for degenerative joint disease (DJD) of the left knee. Record (R.) at 2-11.1 This appeal, over which the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a), was referred to a panel of the Court, with oral argument, to address (1) whether the pre-amendment version of 38 C.F.R. § 20.1304(a)2 applies to appeals returned to the Board by the agency of original jurisdiction (AOJ) following a Board remand; and (2) if so, whether that provision deprives appellants of their constitutional right to due process or is otherwise invalid on its face or as applied to Mr. Williams. 1 For ease of reference, record cites include the supplemental materials submitted by the parties on October 11 and November 1, 2018. 2 Effective February 19, 2019, VA amended § 20.1304(a) to comply with the widespread appeals processing changes mandated by the Veterans Appeals Improvement and Modernization Act of 2017 (VAIMA), Pub. L. No. 115- 55131 Stat. 1105 (Aug. 23, 2017). See VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (final rule) (Jan. 18, 2019); VA Claims and Appeals Modernization, 84 Fed. Reg. 2,449 (notification of effective date) (Feb. 7, 2019). On March 19, 2019, the Court issued a decision affirming the August 2016 Board decision. Mr. Williams subsequently filed a timely motion for reconsideration of our decision, which we granted on May 7, 2019. We now issue this reconsidered decision in place of our March 2019 decision and hold, as we did previously, that § 20.1304(a) does not apply to appeals returned to the Board by the AOJ following a Board remand. Accordingly, we affirm the Board decision currently on appeal. I. FACTS Mr. Williams served on active duty in the U.S. Army from August 1963 to August 1966. R. at 625. In May 1969, he filed a claim for service connection for injuries to both knees. R. at 555-58. In January 1970, a VA regional office (RO) granted service connection for a right knee injury but denied service connection for a left knee injury. R. at 472. The ...
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