Garcia v. Shulkin, 29 Vet.App. 47 (Aug. 9, 2017)

HELD: A claimant must raise all possible errors on a claim in a final Board decision when filing the initial motion for revision on the basis of clear and unmistakable error (CUE) – and this rule applies even when the Court remands that initial CUE challenge. Where the Board has determined that there was no CUE in a prior claim, the Court lacks jurisdiction to remand for the Board to consider any new CUE allegations.

SUMMARY: Veteran Teofilo Garcia was denied service connection for a psychiatric condition in 2003. He appealed to the Board and, after a remand for additional development including a new medical opinion, the Board denied his claim in 2006. He appealed that decision to the Court, through his current counsel, but withdrew the appeal in 2007.

In July 2008, Mr. Garcia, through the same attorney, filed a motion to revise the Board’s 2006 decision on the basis of CUE, arguing that revision was required because (1) the Board did not afford sufficient weight to the favorable medical evidence of record; (2) he was entitled to “a greater duty to assist” since his service records had been destroyed; and (3) the Board should have given him the benefit of the doubt.

The Board denied the motion in April 2010. In July 2010, Mr. Garcia requested reconsideration of that decision, asserting that the Board failed to consider Mr. Garcia’s wife’s hearing testimony. In August 2010, the Board denied the motion to reconsider, finding that its 2006 decision specifically considered Mrs. Garcia’s testimony.

Mr. Garcia appealed to the Court of Appeals for Veterans Claims. In December 2011, the Court affirmed the Board’s determination that there was no CUE in the 2006 decision based on the three arguments he had raised. However, the Court also determined that the Board was required to address Mr. Garcia’s fourth allegation of CUE regarding his wife’s hearing testimony, and remanded for the Board to provide an adequate explanation for its determination that it had properly considered the hearing testimony in its 2006 decision.

The Court also noted Mr. Garcia’s arguments regarding what appeared to be “inappropriate influence” exerted on the VA examiner by the rating specialist, but found that Mr. Garcia had not asserted that this was a due process violation.

Shortly after the Court’s decision, Mr. Garcia died, and his wife was substituted in his appeal. In October 2012, the Board addressed the issues in the Court’s remand and continued to deny the appeal. Mrs. Garcia filed a motion to vacate and reconsider, raising the constitutional due process argument to the Board for the first time. The Board denied the motion and Mrs. Garcia appealed to the Court.

In October 2014, the Court again remanded the issue of CUE regarding the Board’s consideration of Mrs. Garcia’s hearing testimony. The Court also dismissed the constitutional due process allegation because it had not been presented to the Board in the initial CUE motion and the Court thus lacked jurisdiction to consider it.

In May 2015, the Board again determined that there was no CUE in the 2006 decision. Mrs. Garcia again appealed to the Court.

In the present decision, the Court reiterated that “an appellant has only one opportunity to raise allegations of CUE for each claim decided in a Board decision, and any subsequent attempt to raise a CUE challenge to the same claim contained in a Board decision must be dismissed with prejudice,” citing Hillyard v. Shinseki, 24 Vet.App. 343 (2011). The issue in the present appeal was “whether a new CUE challenge may be raised where the Court remands the initial CUE challenge.” The Court held that Hillyard applied to this situation, stating that the “rule established in Hillyard rightly 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.”

The Court concluded that in 2011 and 2014 it had “improperly entertained the fourth allegation of CUE regarding Mrs. Garcia’s testimony,” and that it should have dismissed the appeal of the Board’s decision on that fourth allegation. Because it had no jurisdiction to address this issue, the Court dismissed this portion of the appeal.

Similarly, the Court recognized that it lacked jurisdiction over the due process allegation, since it was not raised in Mr. Garcia’s initial CUE motion. The Court rejected the argument that “due process violations are special and may be raised at any time, regardless of the finality of the underlying decision,” citing Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc), for the proposition that there are only two exceptions to finality. The Court acknowledged a footnote in Cook that appeared to be on point with the present issue, and adopted its reasoning in holding that “even an allegation of a due process violation may not vitiate the finality of a decision.” The Court thus dismissed the due process allegation.