George: 38 C.F.R. § 3.156(c) in the context of CUE

George v. Wilkie, docket no. 16-1221 (March 26, 2020) 

HELD: Under 38 C.F.R. § 3.156(c), VA is required to reconsider a previously denied claim when it receives relevant service records that were not of record at the time of the prior decision – and that “reconsideration” requires some form of evidentiary development. The Court does not have jurisdiction over a CUE argument that was not raised to the Board.

SUMMARY: Mr. George first attempted to obtain service connection for PTSD in 1997. The RO denied the claim and he did not appeal. In 2003, he attempted to reopen his claim. After a series of Board remands, the RO obtained service records that confirmed his claimed stressor and granted service connection, effective 2003. He appealed for an earlier effective date under 38 C.F.R. § 3.156(c) and this issue was remanded by the Court in 2012. In 2013, the Board sent the appeal back to the RO to obtain a retrospective medical opinion to determine when his PTSD first manifested. The RO obtained the opinion and denied an earlier effective date. In 2014, the Board affirmed the denial and Mr. George did not appeal that decision.

In 2015, Mr. George filed a motion to revise the Board’s 2014 decision on the basis of clear and unmistakable error (CUE), arguing that the Board misapplied § 3.156(c). The Board determined that its prior decision did not contain CUE and the Court affirmed that decision. The Federal Circuit remanded the appeal back to the CAVC to determine whether one of the specific CUE allegations was distinct from the CUE allegations that were raised to the Board. If so, the Court would not have jurisdiction over that specific CUE allegation.

At the outset of this opinion, the Court emphasized that its resolution of the § 3.156(c) error “is largely dictated by the fact that we consider that issue through the prism of CUE.” Had Mr. George appealed the Board’s 2014 decision to the Court, then the Court’s review would have been a direct appeal and would not have been subject to the higher standard of CUE.

The first argument the Court addressed was regarding the Board’s treatment of the veteran’s lay statements. The Court held that the 2015 Board did not err in finding that there was no CUE in the 2014 Board’s treatment of the veteran’s lay statements. The Court acknowledged the appellant’s argument that his lay statements should have triggered VA’s duty to assist – but found that this was not CUE because a duty-to-assist violation cannot ever be CUE.

Regarding the Board’s application of § 3.156(c), the Court found that this argument could be viewed two ways: (1) “that the 2015 Board misunderstood how § 3.156(c) operates” or (2) “that the 2014 Board decision contained CUE because it misapplied § 3.156(c) in terms of what type of reconsideration was necessary.” The Court rejected the first argument and determined that it lacked jurisdiction over the second.

The Court discussed the relevant law surrounding § 3.156(c), stating that “reconsideration” under § 3.156(c)(1) requires some development of evidence, citing Vigil v. Peake, 22 Vet.App. 63, 66-67 (2008). The Court held that the 2015 Board “applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision” because it noted that the earliest possible effective date for the grant of benefits would be 1997 and discussed the development performed by the RO after it received the service records – specifically, obtaining a retrospective medical opinion and considering additional evidence.

As for the second “view” of the appellant’s argument – that the 2014 Board decision was CUE because the Board at that time misapplied § 3.156(c) when it failed to properly reconsider his claim – the Court held that it lacked jurisdiction over this argument because it was not specifically raised to the 2015 Board. The Court found that the appellant had made very specific allegations of error in its 2015 motion to revise based on CUE – as CUE requires – and that to allow him to “broaden” his “CUE assertion before the Court to encompass a general challenge to the application of a particular regulation … would render the specificity requirement of a CUE motion essentially meaningless.” The Court noted that this is “especially true in this matter, where appellant hs been represented by the same counsel throughout this appeal.” The Court dismissed the appeal “to the extent appellant has raised this argument.”

Judge Greenberg dissented “simply because the factual circumstances of this case warrant a more equitable result.”