Garcia: A Second CUE Claim is Not Allowed

Garcia v. Wilkie, Opinion Number 2018-1038 is a Federal Circuit decision that concerns what happens when a veteran seeks to file a second CUE claim.

The veteran submitted a claim in 2002 which was denied by the Board in 2006, appealed to the Veterans Court, but then dismissed by the veteran—at which time the decision became final.

The veteran then filed a CUE claim attacking the 2006 Board decision.  This resulted in a Board denial in 2010.  In filings to the Board and Veterans Court, new allegations of CUE were raised after the 2010 decision denying CUE.  The Veterans Court found those new allegations of CUE made in the subsequent filings were barred by the regulation. 

The veteran focused on a 2005 C&P examination which was initially positive.  However, the VA’s Appeals Management Center sent a second request to the physician essentially pointing out problems with the positive opinion.  The examiner then issued a one sentence addendum which did not support service connection.  This resulted in a Supplemental Statement of the Case again denying service connection.  This was appealed and the American Legion argued on behalf of the veteran that the medical opinion did not take into account evidence that would support the claim for benefits.  However, the brief did not challenge the AMC’s request to the physician for an addendum. 

In the veteran’s 2007 CUE claim and subsequent 2008 CUE motion to the Board, he argued:

the record supported “several independent medical conclusions” of service connection, that he was entitled to more assistance from the VA in light of the loss of his medical records in the 1973 fire, and that he was entitled to the benefit of the doubt on the issue of service connection “[g]iven the evidence available at the time, including the testimony of [Mr. Garcia] and the reports of various medical providers.” J.A. 63–65. He did not argue that the Appeals Management Center had improperly pressured Dr. Greene to change her service-connection conclusion or that his right to constitutional due process had been violated. Nor did he point to or rely on the testimony that Mrs. Garcia gave at the 2004 Board hearing.

Id. at *6.

The CUE claim was denied in April 2010.  A July 2010 motion to reconsider argued “‘counsel [in earlier filings] may have not adequately notified the Board of portions of the record which bear directly upon the C.U.E. issue at bar,’—specifically, Mrs. Garcia’s 2004 Board testimony, which he claimed indicated the existence of a paranoia disorder when the two began dating soon after he returned from service.”  Id. at *6.  The Board denied saying the testimony may have impacted the weighing of evidence, but any failure to consider the testimony did not constitute clear and unmistakable error.

The veteran appealed to the Veterans Court arguing the AMC’s second request denied him due process. The Veterans Court denied on that ground saying the due process allegation was not presented to the Board.  However, the Court did grant a remand based on the motion to reconsider in light of the wife’s testimony.  On remand, the Board ruled against the veteran.  A motion to reconsider again addressed the due process argument, the motion was denied.  The veteran again appealed to the Veterans Court arguing

the Appeals Management Center’s actions regarding Dr. Greene violated her late husband’s right to due process and that the Board’s failure to consider her testimony was clear and unmistakable error. The Veterans Court again found that the allegation of a due process violation had not been properly presented to the Board. And it again remanded the matter of Mrs. Garcia’s testimony for further consideration.

Id. at *8.

The Board again denied and she again appealed to the Veterans Court on both issues. 

The Veterans Court found neither allegation had been presented to the Board in Mr. Garcia’s CUE motion or before the Board issued its decision on that CUE motion in 2010. Therefore, the Veterans Court ruled 38 C.F.R. § 20.1409(c) “requires 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,” barring “later CUE challenges to [that] Board decision.” Id. at *8-9.

The Federal Circuit began its analysis by noting a veteran can revise a Board denial after final by either presenting new and material evidence to reopen the claim or showing clear and unmistakable error.  It then lays out the basic law to CUE claims. 

First, the standard for relief is high--“Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.”  Id. at *10.  Second, the pleading requirements are demand, and place the onus on the veteran to specifically raise each issue.  Third, a veteran is permitted only one CUE challenge to a Board decision on any given disability claim.

The Court stated:

Regarding the alleged due process violation, we limit our ruling to the situation presented here: undisputed facts demonstrate that the allegation could have been, but was not, presented in the 2008 CUE motion. The parties agree, and the record clearly shows, that Dr. Greene’s initial examination report, the Appeals Management Center’s follow-up request, and Dr. Greene’s addendum were provided or were available to Mr. Garcia in 2006, at the time he submitted his brief to the Board in support of his claim for benefits.

The parties also do not dispute that Mr. Garcia first alleged the constitutional due process

violation in 2011 in his appeal to the Veterans Court of the Board’s 2010 decision denying his CUE motion. In these circumstances, the Veterans Court properly found

that Mr. Garcia did not raise a due process challenge in his initial CUE motion or, indeed, until after the Board ruled on that motion.

Id. at *14.

While limiting its ruling to, the Court also was careful to leave the door open to including the arguments made as amendments to the initial motion if a decision on the CUE claim has not actually been made.  Id. at *13.

The Court also notes the Veteran Court found the due process violation argument was no longer permitted at the time the veteran presented it because of the bar on presenting multiple CUE motions.  The veteran argued a constitutional challenge is special and simply not subject to the rule against successive allegations of CUE.  The Court rejected this argument stating “The particular due process challenge at issue here was readily available to Mr. Garcia at the time of the 2008 CUE challenge. We see no constitutional difficulty in the regulation’s channeling of an available CUE challenge on this basis to the initial CUE motion, with CUE relief on this basis not thereafter available.”  Id. at *16.

This case reveals the need to include with specificity all allegations to be made in a CUE motion.  It also reveals that repeated attacks on a final Board or Court decision are unlikely to prevail.  While the result is harsh, the decision leaves open the door to other issues that might tilt the equities toward the veteran.

Decision by Judge Taranto and joined by Judge O’Malley and Reyna.

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