CUE: How Many Bites at the Apple Do You Get?

Hillyard: CUE, How Many Bites At the Apple Do You Get?

Joseph C. Hillyard v. Eric K. Shinseki, Opinion Number 08-1733, decided March 29, 2011 involves the ability of a veteran to filed a second motion to revise in light of CUE after having been previously denied a similar motion on a different theory.

The veteran suffered a head injury and later made a claim that it caused a mental condition. Such claim was denied by the Regional Office and Board. In 2001, the veteran filed a motion to revise the Board’s decision based on CUE because the Board failed to adjudicate a claim for an adjustment disorder and did not discuss whether such disorder pre-existed service. The motion was denied.

The veteran filed another motion to revise the Board’s decision based on CUE in 2006 and this time argued the Board had a duty to sympathetically read his claim and apply 38 USC § 105(a) and 1111. The Board determined that although the arguments in support of the veteran’s 2006 motion were different from the 2001 motion, the arguments pertained to the same issues and therefore the later motion should be dismissed.

Before the Court, the veteran argued because a motion to revised based on CUE must be plead with specificity, a claimant remains free to make a new motion based on an unraised theory.

The Court had to wrestle with two competing Federal Circuit decisions. In DAV v. Gober, 234 F.3d 682 (Fed. Cir. 2000), the Federal Circuit upheld the validity of 38 CFR 20.1409(c) (which says once a final decision on a motion to revise is made regarding a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of CUE and subsequent CUE motions will be dismissed). Whereas in Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), the Federal Circuit stated each new CUE theory is independent for res judicata purposes, so a narrow reading of what CUE theories were raised would work no disadvantage to the claimant, as any unraised theories could be raised in a new CUE action.

The Court ultimately accepted DAV as controlling because it contained a clear discussion of 38 CFR 20.1409(c) and the decision promoted judicial economy and finality. Thus, the Court affirmed the dismissal of Hillyard’s CUE claim. The Court recognized the Board could attempt to foreclose a CUE challenge by declaring a CUE challenge on its own initiative, defining the issue, and thus precluding a veteran from being able to bring a subsequent CUE challenge of the underlying Board decision at a later time. The Court stated its trust that VA adjudicators would not improperly preclude a veteran from raising an issue of CUE by labeling the issues in such a manner that would prevent a later CUE challenge.

The Court reiterated that an appellant has only one opportunity to raise any allegation of CUE for each claim decided in a Board decision and any subsequent attempt will be dismissed. The Court then defined a claim as an informal or formal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit, and reiterated that a CUE claim is a motion or request rather than a claim.

Decided by Judges Greene, Hagel and Schoelen.