Cacciola: CUE When A Case Has Been Decided by the Court

Thomas F. Cacciola v. Sloan D. Gibson, Opinion Number 12-1824, decided July 22, 2014 concerns a claim for CUE when the case had previously been decided by the Court of Appeals for Veteran Claims.

The veteran had sought a higher rating and an earlier effective date which both been denied in a prior Board decision.  The veteran appealed to the court but the Court found the issue regarding the initial compensable rating was abandoned.  He then filed a CUE claim as to an earlier effective date and a higher initial compensation rate.  Importantly, 38 C.F.R. Section 10.1400(b) states all final Board decision are subject to revision except decisions on issues that have been “appealed to and decided by a court of competent jurisdiction”.

The Court found that a veteran “expressly abandons an issue in his initial brief or fails to present any challenge and argument regarding an issue, the abandoned issue generally is not reviewed by the Court” and thus “an abandoned issue is not decided by the Court for purposes of determining the availability of a collateral attack based on CUE.”  Id. at *2.  “Accordingly, in such instances, a claimant is not barred from bringing a motion to reverse or revise a Board decision on an abandoned issue.”  Id.

“To be clear, the Court notes that abandonment of an issue on appeal, whether express or implied, is different from the situation in which an appellant states that he is appealing the Board’s decision on an issue, but then makes no arguments, or insufficient arguments, challenging the Board’s determination.  In such instances, the Court generally affirms the Board’s decision as a result of the appellant’s failure to plead with particularity the allegation of error and satisfy his burden of persuasion on appeal to show Board error.”  Id. at *15. 

The Court then actually dealt with the issue of CUE in this case and determined there was no error.  The Court stated “the crux of [the veteran’s] argument is that the 2012 Board decision did not adequately weigh the 1985 examination report and that the Board ‘may have’ reached a different conclusion had this evidence been properly considered.”  Id. at *18.  This simply did not rise to the level necessary for a CUE claim.

Authored by Judge Schoelen and joined by Judge Pietsch. Chief Judge Kasold concurred in a separate opinion which expressed his displeasure with the Court’s prior decision in Fagre v. Peake, 22 Vet. App. 188 (2008).  Fagre found it appropriate to delay  a claimant who seeks Board reconsideration of a decision on benefits from appealing another adverse decision in the same Board decision until the request for reconsideration was resolved.  The Chief judge apparently feels there should be no dispute the Court has jurisdiction over a part of a Board decision that denies benefits and sees no reason to delay a decision as to that issue under Fagre.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://thomasandrewslaw.com/