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.
No comments:
Post a Comment