Porriello v. Shulkin, Case Number 16-2880, decided March
12, 2018 considers a request to revise a previous rating decision based on
clear and unmistakable error in the context of a case that had previously been
ruled upon by the Court and the Federal Circuit.
The veteran was discharged in 1961 after a medical board and
a 1961 application for benefits was denied based on the condition being
pre-existing service and not being aggravated during service and subsequently
denied again after new evidence was submitted.
Ultimately, a 2005 decision granted service connection for the
condition with a 100% rating. The
veteran then submitted a statement stating he believed the claim had been
denied in error years before and that he was owed an earlier effective date. A letter from a veterans service organization
then asserted CUE in the 1968 denial without referencing the first 1961
decision or describing any particular theory of CUE. The CUE claim was denied in 2006, appealed to
the Board and a VSO argued a specific theory of CUE. The Board denied in 2008 and the claim was
appealed to the Court. The veteran
argued the 1961 decision improperly applied the presumption of soundness and
presumption of aggravation. A single
judge decision stated even assuming a factual error, “whether a different
result would have ensued was not absolutely clear.” Id. at *5. Additionally, “[a]s to the presumption of
aggravation, the Court found that the evidence of record in 1961 did not
clearly establish that Mr. Porriello's … [condition] worsened. Id. at *5. The decision was affirmed by the Federal Circuit
without comment.
Subsequently, the veteran filed “ a request for revision of
the March 1961 rating decision on the basis of CUE. The request generally argued that the rating
decision improperly applied the presumption of soundness.” The request was denied by the RO and Board and
in his NOD noted this NOD was the first time he had specifically alleged CUE in
the 1961 decision and the 2005 statement did not present a specific allegation
of CUE and thus should have been dismissed.
“Mr. Porriello argues that the May 2008 Board lacked subject
matter jurisdiction to consider any allegation of CUE in the 1961 and 1968
rating decisions because he never presented any specific allegation of CUE at
the outset of proceedings leading to that decision.” Id. at *6.
He further argued “the May 2008 Board should have dismissed the appeal
and, having failed to do so, its decision is "a nullity at law." He concludes that the May 2008 Board decision
could not have subsumed the 1961 and 1968 rating decisions because the Board
lacked jurisdiction.” Id. at *6. “The Secretary's counterarguments assume the
validity of the court decisions, which Mr. Porriello disputes on the basis the
Board lacked jurisdiction to render its 2008 decision.” Id. at *7.
The Court began by stating “As an original matter, Mr.
Porriello's jurisdictional arguments might have force and weight. Not only was there no specific allegation of
CUE in Mr. Porriello's February 2005 statement, but the May 2008 Board's
jurisdiction over the 1961 rating decisions is also murky at best.” Id. at
*8. However, the Court then stated
The time for raising such
jurisdictional objections, however, has passed. "A litigant . . .
may raise a court's lack of
subject-matter jurisdiction at any time in the same civil action, even initially
at the highest appellate instance." "Even subject matter
jurisdiction, however, may not be attacked collaterally." "[T]he need
for finality forbids a court called upon to enforce a final order to 'tunnel
back . . . for the purpose of reassessing prior jurisdiction de novo.'"
Id. at *8 (internal citations omitted).
The Court then found:
Mr. Porriello had the opportunity to
raise the jurisdictional issue in his appeal of the May
2008 Board decision, both to this
Court and to the Federal Circuit. He did not raise any such jurisdictional
challenge, either in his briefs to this Court or in his briefs to the Federal
Circuit. Caselaw uniformly provides that
he may not attack the jurisdiction of the 2008 Board, or of this Court, or of
the Federal Circuit, collaterally. The Court concludes that the 2008 Board decision
and the decisions of this Court and the Federal Circuit are valid as well as
final.
Id. at *9.
The Court then determined the requirements of res judicata
had been met in this case and stated
Whether, based on the facts of the
case, a claim is barred by the doctrine of res judicata is
a question of law that [appellate
courts] review de novo." Here, all
the requirements for the application of res judicata are met. As discussed above,
Mr. Porriello's failure to raise any jurisdictional challenge on direct appeal
means that the decisions of the Board, this Court, and the Federal Circuit are
both final and valid.
***
Clearly, the 2008 Board decision,
which this Court and the Federal Circuit upheld, was on the merits and the
parties are the same. Thus, the doctrine of res judicata precludes raising the
same CUE theory again. Consequently, the Board was correct in dismissing the
appeal of the CUE motion.
Id. at *10.
While the case shows the Court is willing to end an appeal
on res judicata grounds (something I don’t remember happening before), this is
a narrow decision addressing CUE and a history of the case before the Court.
Decision by Chief Judge Davis and joined by Judges Bartley
and Meredith.
