George: Presumption of Soundness, CUE, Retroactivity

George v. Wilkie, docket no. 16-2174 (Jan. 4, 2019) 

HELD: In order to rebut the presumption of soundness, 38 U.S.C. § 1111 has always required VA to prove that a condition both pre-existed and was not aggravated by service. However, that is not how VA interpreted the statute prior to 2003 – and the Court declined to retroactively apply the correct statutory interpretation, as set forth in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), to an appeal alleging CUE in a pre-2003 final decision. 

SUMMARY: Kevin George was diagnosed with schizophrenia in service. A Medical Board report found that the condition pre-existed and was aggravated by service, but a Physical Evaluation Board found that the pre-existing condition was not aggravated by service. He filed a claim for service connection a few months after discharge and was denied in 1976. The Board denied the claim in 1977. 

In 2014, he filed a request to revise the 1977 Board decision on the basis of clear-and-unmistakable error (CUE), alleging that the Board failed to correctly apply the presumption of soundness by not rebutting “with clear and unmistakable evidence that his condition was not aggravated by service.” The Board found no CUE in the 1977 decision, noting that the Board at the time was not required to find clear and unmistakable evidence of a lack of aggravation. The Board acknowledged the Federal Circuit’s holding in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), but stated that “judicial decisions that formulate new interpretations of the law subsequent to a VA decision cannot form the basis of CUE.” 

On appeal at the CAVC, the Court outlined the relevant law. The Court first noted that the presumption of soundness statute in 1977 (and today) allowed the Secretary to rebut only by showing of clear and unmistakable evidence of bothpre-existence andlack of aggravation. However, VA’s implementing regulation in 1977, 38 C.F.R. § 3.304(b), only required clear and unmistakable evidence that the condition pre-existed service. VA invalidated the regulation in 2003. Wagner was decided in 2004.

The Court explained the requirements for establishing CUE in a final decision, noting that 38 C.F.R. § 20.1403(e) “states that CUE ‘does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.’” The Court cited DAV v. Gober, 234 F.3d 682, 698 (Fed. Cir. 2000) in holding that “[t]he new interpretation of a statute can only retroactively [a]ffect decisions still open on direct review, not those decisions that are final.”

The Court then discussed the Federal Circuit’s decision in Wagner and its subsequent holding in Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005). In Jordan, the Court applied the DAV rule to Wagner, holding that “CUE does not arise from a new regulatory interpretation of a statute.” In other words, even though Wagner explained that the presumption of soundness statute has always meant that it can only be rebutted with clear and unmistakable evidence of both pre-existence and a lack of aggravation, a claimant could not raise a CUE challenge to a final decision based on the invalidation of VA’s implementing regulation that only required a showing of pre-existence to rebut. 

Finally, the Court discussed the Patrick line of primarily nonprecedential cases that addressed WagnerJordan, and retroactivity in a CUE case. In Patrick, as in the present appeal, the claimant argued CUE in a prior final decision based on the incorrect application of the presumption of soundness. The CAVC affirmed the Board’s denial and the Federal Circuit remanded for the Court to consider the application of Wagner, which had recently been decided at that time. 

On remand, the CAVC again affirmed the Board’s denial, citing Jordan for holding that Wagner’s “new” interpretation of the presumption of soundness did not retroactively apply in a CUE case. Mrs. Patrick again appealed, and, in Patrick III, also a nonprecedential decision, the Federal Circuit explained that Jordan dealt with “whether a change in the regulatory interpretation of a statute had retroactive effect on CUE [motions], not whether [its] interpretation of the statute in Wagner had retroactive effect on CUE [motions].” The Federal Circuit described the Jordan holding as limited, stating that “[u]nlike changes in regulations and statutes, which are prospective, [the Court’s] interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.” In other words, “Wagner did not change the law but explained what [section] 1111 has always meant.” The Federal Circuit remanded the matter back to the CAVC to determine whether VA rebutted the presumption of soundness with clear and unmistakable evidence of a lack of aggravation. The CAVC vacated the Board’s decision, and the attorney filed an application for EAJA fees. 

The CAVC denied the EAJA application, finding that the Secretary’s position was substantially justified. Again, Mrs. Patrick appealed to the Federal Circuit. In Patrick v. Shinseki (Patrick VI), 668 F.3d 1325 (Fed. Cir. 2011) – the only precedential decision in this line of cases – the Federal Circuit reversed the CAVC’s decision and remanded for the CAVC to consider substantial justification under the “totality of circumstances” test. In a footnote, the Federal Circuit noted that in Patrick III, it had rejected the CAVC’s determination that the correct “interpretation of section 1111 did not apply retroactively in the context of a CUE claim,” and repeated that “our interpretation of § 1111 . . . did not change the law but explained what [section] 1111 has always meant.”

With respect to retroactivity and CUE, the Court acknowledged that the Federal Circuit’s interpretation of section 1111 in Wagner is “an authoritative statement of what the statute meant before as well as after” that decision, but still found that the 2004 Wagner decision “cannot defeat the finality of a 1977 Board decision . . . because consideration of CUE requires the application of the law as it was understood at the time of the 1977 decision.” The Court explained: “Applying a statute or regulation as it was interpreted and understood at the time a prior final decision is rendered does not become CUE by virtue of a subsequent interpretation of the statute or regulation by this Court or the Federal Circuit.” 

In applying the law to the facts of this case, the Court noted that the Secretary conceded that the Board erred when it determined that the 1977 Board was not required to find clear and unmistakable evidence of a lack of aggravation due to the 1977 version of the implementing regulation. The Court disagreed with this concession of error, stating that “it is not clear how the Board could have ignored [38 C.F.R. § 3.304(b)] or why the Board would have been required to find clear and unmistakable evidence of aggravation in 1977.” [ABK note: I don’t know . . . maybe because the statute says so? Call me crazy . . . ] The Court held: “While the Federal Circuit’s interpretation of the presumption of soundness statute in Wagner sets forth what the statute has always meant, it was not the interpretation or understanding of the statute before its issuance.” The Court noted the Federal Circuit’s finding in Jordan that “there was a change in interpretation of section 1111” when VA invalidated § 3.304(b) and thus determined that “Wagner does not apply retroactively to final decisions.” 

In response to the argument based on the Patrick line of cases, the Court held that Patrick III is not binding precedent and the footnote in Patrick VI is dicta. The Court added that the statements in Patrick III and Patrick VI regarding “Wagner’s retroactivity conflict with other precedential Federal Circuit caselaw,” specifically DAV, which held that “[t]he new interpretation of a statute can only retroactively [a]ffect decisions still open on direct review, not those decision[s] that are final.” To bolster its decision, the Court stated: “The impact of allowing judicial decisions interpreting statutory provisions issued after final VA decisions to support allegations of CUE would cause a tremendous hardship on an already overburdened VA system of administering veterans benefits.” 

The Court further found that even if Wagner applied retroactively, Mr. George’s CUE allegation would fail because he did not prove that the 2016 Board erred in determining that the 1977 Board’s errors did not manifestly change the outcome of its decision. The Court thus affirmed the 2016 Board’s decision.  

In a well-crafted dissent that will likely form the foundation for an appeal to the Federal Circuit, Judge Bartley stated that “the will of Congress, not VA, should prevail.” She reiterated that the Federal Circuit “‘soundly rejected’ the argument ‘that this court’s interpretation of section IIII did not apply retroactively in the context of a CUE claim” citing the Patrick VI footnote, adding that she was “not willing to dismiss this unambiguous and germane guidance from our reviewing court, particularly when that guidance is grounded in the unalterable principle that veteran-friendly congressional intent holds primacy over a VA interpretation that is less beneficial to veterans.” She rejected the majority’s concern of causing “a tremendous hardship” on VA, stating that she would have “no reservations about requiring VA to remedy the decades old errors that prohibit otherwise deserving veterans and their dependents from receiving the benefits to which they are statutorily entitled.”


Porriello: CUE, res judicata

Porriello v. Shulkin, 30 Vet.App. 1 (Mar. 12, 2018)

HELD: A challenge to the Board’s jurisdiction to address a specific allegation of clear and unmistakable error (CUE) must be raised during the appeal period of the relevant decision and cannot later be challenged on the basis of CUE when the appeal period has passed and additional appellate tribunals have already issued final decisions on the matter.

 SUMMARY: Mr. Porrriello’s enlistment examination noted no conditions, but he was hospitalized in service for ulcerative colitis, which was determined to have pre-existed service by a 1961 Medical Board. Shortly after separation, he applied for disability benefits and was denied in March and July 1961. He did not appeal, but did file another claim in 1967, which was denied in June 1968. In January 2005, he was finally granted benefits based on new medical evidence. One month later, he submitted a statement, asserting his belief that his claim was “erroneously denied” 40 years ago.

In October 2005, the veteran’s DAV representative characterized the statement as a Notice of Disagreement, but later withdrew the appeal and instead stated that he had argued CUE in the June 1968 decision. There was no mention of the 1961 decision. The RO denied an earlier effective date, but did not mention any specific CUE theory. The veteran appealed, and the RO issued a Statement of the Case stating that he had not provided rationale to support his CUE allegation, but still found no CUE in 1961 and 1968. The veteran filed a VA Form 9. He did not provide any specific theory of CUE, but referred to his entrance examination showing no evidence of a pre-existing condition. The DAV representative then submitted a document identifying the issue as CUE in the 1961 decision. The representative described a specific theory of CUE based on a private doctor’s diagnosis of the pre-service symptoms that was different from the in-service diagnosis of ulcerative colitis.

In May 2008, the Board addressed and rejected this CUE theory. Mr. Porriello appealed to this Court, through counsel, and the Court affirmed the Board’s decision. The Federal Circuit, in turn, affirmed this Court’s decision.

In May 2013, Mr. Porriello filed, through counsel, a request for revision of the 1961 decision on the basis of CUE, arguing that the RO failed to properly apply the presumption of soundness. The RO denied the request, noting that the 2008 Board already considered the application of the presumption of soundness. He appealed to the Board and the Board found that it lacked jurisdiction to address his arguments since the 2008 Board decision had considered the presumption of soundness and “the 1961 and 1968 rating decisions were subsumed by the 2008 Board decision.”

 On appeal to the Court, Mr. Porriello argued that the 2008 Board lacked subject matter jurisdiction to consider any CUE allegation in the 1961 and 1968 rating decisions because he never raised any specific CUE allegation “at the outset of proceedings leading to that decision.” Because the Board lacked jurisdiction, he further asserted that neither this Court nor the Federal Circuit had jurisdiction to review the Board’s decision.

 This Court found that Mr. Porriello’s “jurisdictional arguments might have force and weight” – but that “[t]he time for raising such jurisdictional objections, however, has passed” and that he should have raised these issues during his appeal of the May 2008 Board decision. The Court agreed that the Board erred in determining that the 1961 and 1968 RO decisions were subsumed by the May 2008 Board decision. However, 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.” The Court held that “the doctrine of res judicata precludes raising the same CUE theory again,” and affirmed the Board’s decision.


George: 38 C.F.R. § 3.156(c) & CUE

George v. Shulkin29 Vet.App. 199 (Feb. 5, 2018)

HELD: Upon receiving new service records, VA must “reconsider” a claimant’s original claim even if service connection has already been granted with a later effective date. However, “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1),” the Court in this case did not find CUE in the Board’s determination that a proper reconsideration occurred. 

SUMMARY: In 1998, the RO denied Mr. George’s claim for service connection for PTSD because there was no confirmed PTSD diagnosis and no in-service stressor. In 2003, the veteran requested reopening. VA obtained service records, confirming the in-service stressor, and granted service connection, effective 2003. Mr. George appealed, arguing that 1998 denial should be reconsidered under 38 C.F.R. § 3.156(c). 

In 2012, on appeal to the CAVC, the parties agreed to remand for Board to consider the applicability of § 3.156(c). The Board subsequently remands for a retrospective medical opinion to determine when Mr. George’s PTSD first manifested. The C&P examiner opined that the condition first manifested in 2003, based on the 2003 C&P examiner’s report. 

In 2014, the Board denies entitlement to an earlier effective date, noting that the grant could go back to 1997, but that the first evidence of a PTSD diagnosis was not until 2003. The veteran did not appeal this decision

In 2015, Mr. George filed a motion to revise the 2014 decision on the basis of clear and unmistakable error (CUE), arguing that the Board misapplied § 3.156(c). The Board determined that there was no CUE in the 2014 decision because the medical evidence did not support a PTSD diagnosis prior to 2003. 

On appeal to the CAVC, the veteran argued that the Board erred in determining that the 2014 decision was not CUE because the Board did not “reconsider” his claim under § 3.156(c)(1), but instead only reviewed the proper effective date under § 3.156(c)(3). He argued that the finality of the original 1997 decision “‘had been undone’ by receipt of new service treatment records, and because the RO never engaged in a full readjudication, the Board erred when it found no CUE.” 

At the very beginning of its opinion, the Court emphasized that “our resolution of the claimed error here under § 3.156(c) is largely dictated by the fact that we consider that matter through the prism of CUE.” (Advocacy note: This point must be emphasized. Had the veteran directly appealed the effective date assigned in the 2003 decision, this issue would not have been subjected to the heightened CUE standard.)

The CAVC discussed § 3.156(c) and found that “upon receiving official service department records in 2007, VA had a duty to ‘reconsider’ the appellant’s 1997 claim for service connection for PTSD, despite the fact that service connection for PTSD was granted in 2007 with an effective date of 2003.” The Court noted that “what would satisfy the reconsideration required is a gray area under existing law,” and noted that “§ 3.156(c) is about more than effective dates; it’s also about development of the claim in at least some respect.” Nevertheless, the Court determined that the Board “applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision.” 

Turning to the question of whether the 2015 Board properly determined that there was no CUE in the 2014 decision, the Court stated: “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1), the Board’s determination that a proper reconsideration occurred based on the gathering of new evidence and the reweighing of old evidence, is not arbitrary and capricious under the deferential CUE standard.” 

In a footnote, the Court acknowledged the appellant’s argument that had the Board conducted a “‘full readjudication’ in 2014, his lay statements may have triggered VA’s duty to assist.” The Court stated that the duty-to-assist argument could have been raised on direct appeal, but noted that it is well established that a duty-to-assist violation cannot be CUE. 



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.



Hime v. McDonald, 28 Vet.App. 1 (Mar. 3, 2016)

HELD: A 1983 Board decision was not CLEAR AND UNMISTAKABLE ERROR because the Board (1) was allowed to exercise its own medical judgment at that time and (2) was not required to provide a statement of reasons or bases for its determinations.

SUMMARY: The veteran in this case challenged a November 1983 Board decision on the basis of clear and unmistakable error (CUE). However, the Court found that at the time of the November 1983 decision, the Board did not have a reason-or-bases requirement and Board decisions were decided by three-member panels that included one medical professional. The use of the medical opinion provided by the medical member of the panel was common practice. While the Court agreed with the appellant that the 1983 Board decision was not “evidence,” the Court determined that the Board decision was not CUE because of the law in existence at that time.