"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Thursday, September 7, 2017

Garcia: CUE and Due Process


Garcia v. Shulkin, Case Number 15-3669, decided August 9, 2017 examines an allegations of a violation of due process in the context of a CUE claim.

The veteran and veteran’s spouse argued clear and unmistakable error regarding service connection for his mental state. 

The Court reaffirmed the pre-existing rule from Hillyard  v. Shinseki, 24 Vet. App. 343 (2011) which states that all possible errors in a final Board decision be raised at the time a motion for revision of that Board decision based on CUE is filed and that no later CUE challenges to a Board decision may be entertained.  Hillyard essentially says you have one chance at a CUE claim and that you had better make all your arguments when you have the chance.

This case involved a prior remand related to the CUE claim for the Board to consider a newly-raised theory of CUE.  In its decision, the Court found they should have remanded for consideration of a newly-raised theory of CUE in light of the rule from Hillyard.  The result was they dismissed the appeal based on a lack of jurisdiction. 

The Court further explained that constitutional due process arguments also can’t be newly-raised in a second CUE claim or added after the CUE claim has been made.  The Court looks at a prior decision by the Federal Circuit that notes that a breach of a duty to assist may not form the reason for a CUE claim. 

This decision is a reminder that a CUE claims should be well-thought out before filing.


Decision by Chief Judge Davis and joined in by Judges Pietsch and Greenberg.

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