Garcia v. Wilkie , 908 F.3d 728 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
PAULINE GARCIA,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-1038
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-3669, Chief Judge Robert N.
Davis, Judge Coral Wong Pietsch, Judge William S.
Greenberg.
______________________
Decided: November 5, 2018
______________________
WILLIAM L'ESPERANCE, Albuquerque, NM, argued for
claimant-appellant.
MARTIN F. HOCKEY, JR., Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by ROBERT EDWARD KIRSCHMAN, JR.,
JOSEPH H. HUNT; BRIAN D. GRIFFIN, JONATHAN KRISCH,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 GARCIA v. WILKIE
______________________
Before O’MALLEY, REYNA, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
Teofila Garcia, the late husband of appellant Pauline
Garcia, was a veteran of the United States Army. In
2002, he filed a claim with the Department of Veterans
Affairs for disability benefits based on a mental disorder
characterized by paranoia, which he asserted was con-
nected to his military service. The Board of Veterans’
Appeals denied his claim in 2006. After initially appeal-
ing to the Court of Appeals for Veterans Claims (Veterans
Court), Mr. Garcia successfully moved to dismiss the
appeal, and the Board’s decision became final.
Mr. Garcia then collaterally challenged the 2006
Board decision through a motion contending that the
Board had committed clear and unmistakable error (CUE)
in that decision. The Board denied Mr. Garcia’s CUE
motion in 2010. In filings with the Board and the Veter-
ans Court after the 2010 Board decision, Mr. Garcia—
succeeded by Mrs. Garcia when her husband died—raised
new allegations of CUE. The Veterans Court ultimately
determined that those new CUE allegations made in the
subsequent filings were barred by regulation. Garcia v.
Shulkin, 29 Vet. App. 47 (2017). Mrs. Garcia appeals to
this court. We reject Mrs. Garcia’s two challenges to that
determination and therefore affirm.
I
A
Mr. Garcia served in the United States Army from
1952 to 1954. The military’s records of his medical treat-
ment during service were among those destroyed in a fire
in 1973 at the National Personnel Records Center in St.
Louis, Missouri. The record of his medical examination
upon leaving the service was not destroyed. That record
GARCIA v. WILKIE 3
reveals a normal psychiatric state and, more generally, no
severe illnesses or injuries.
Mr. Garcia first saw Dr. John Smoker, a private phy-
sician, in 1965 for a burn from a welding accident. In
1969, Dr. Smoker diagnosed Mr. Garcia with, and pre-
scribed medication for, paranoid schizophrenia.
In 2002, Mr. Garcia submitted a claim for disability
benefits to the Albuquerque regional office of the Veterans
Benefits Administration of the U.S. Department of Veter-
ans Affairs (VA), alleging service connection of disability-
causing paranoid schizophrenia. The regional office
denied the claim. Mr. Garcia appealed to the Board of
Veterans’ Appeals, which held a hearing in September
2004 at which both Mr. Garcia and Mrs. Garcia gave
testimony. In December 2004, the Board remanded the
case to the regional office for a VA psychiatric examina-
tion, directing the examiner to “provide a current diagno-
sis and indicate whether any mental disorder currently
shown is characterized by paranoia” and to state “the
medical probabilities that it is attributable to the veter-
an’s period of military service.” J.A. 130.
The Appeals Management Center, processing the re-
mand, requested a psychiatric examination on January 4,
2005. A VA examiner, Dr. Greene, conducted the exami-
nation on February 3, 2005. Dr. Greene’s report leaves
unclear if she looked at Mr. Garcia’s claim file and medi-
cal records, but it shows that she took a medical history
from Mr. Garcia, who stated that he saw a psychiatrist
twice for paranoia while in the service. Dr. Greene found
that Mr. Garcia met the “diagnostic criteria for the diag-
nosis of schizophrenia, paranoid type, for which he has
been treated for many years and claims he was first seen
for paranoia in the service and that as likely as not this
disorder started in the service per the history given.”
J.A. 57 (emphases added).
4 GARCIA v. WILKIE
In October 2005, the Appeals Management Center,
upon receiving and reading the examination report,
returned Mr. Garcia’s file to Dr. Greene with a request
that she “please state in [her] report that [she has] re-
viewed the claims folder[;] if not we run the risk of asking
for a repeat examination and/or addendum.” J.A. 58
(capitalization omitted). The Center also asked Dr.
Greene to “provide a rationale for [her] finding” that “as
likely as not this disorder started in the service per the
history given.” J.A. 59, 57. The Center noted that such a
finding was not usually associated with service records
like those of Mr. Garcia, which revealed that he had been
promoted, had not lost time for being absent without
leave or confinement, had been awarded the Good Con-
duct Medal, and had not been barred from further service
or enlistment after successfully completing his full, two-
year term of service. Id. at 59. According to the Center,
people with paranoid schizophrenia, “in service, are often
identified, wrongly, as discipline problems” and their
records often show grade or rank reductions, frequent
absence without leave, confinement, early discharge, and
a bar on re-enlistment. Id. The Center advised that Dr.
Greene consider the supporting rationale for her finding
that Mr. Garcia’s paranoid schizophrenia manifested
itself during service in 1952–54 and stated that her
rationale “must include studies, facts, treatment and
other evidence or information that shows the progression
of this disability over time.” Id.
A week later, Dr. Greene responded by adding a one-
sentence addendum to her initial report: “After review of
the [claim] file, [I] now feel it is impossible to say, without
resorting to mere speculation, as to whether this veteran’s
schizophrenia, paranoid type actually started in Service,
without more documentation and records.” J.A. 60. The
Center then issued a Supplemental Statement of the
Case, in which it “confirmed” the previous denial of ser-
vice connection for Mr. Garcia’s condition. J.A. 127.
GARCIA v. WILKIE 5
On appeal to the Board once again, Mr. Garcia,
through the American Legion as his non-attorney repre-
sentative, submitted a brief arguing that Dr. Greene’s
medical report and addendum did not take account of
other record evidence that supported his claim for bene-
fits. The brief refers to and quotes from the Appeals
Management Center’s October 2005 request to Dr.
Greene, see J.A. 130–31; id. at 131 (quoting J.A. 59), but it
contains no challenge to that request as improperly
having led Dr. Greene to change her conclusion. The
Board denied Mr. Garcia’s claim in October 2006. Mr.
Garcia—who was represented by counsel at that time and
has been ever since—appealed that decision to the Veter-
ans Court. But he soon moved to dismiss the appeal, and
the Veterans Court granted his motion.
B
In August 2007, Mr. Garcia initiated a collateral chal-
lenge to the Board’s denial of his claim for disability
benefits. He sent the regional office a form alleging
“[c]lear and unmistakable error” in that the “[c]orrect
facts were not before the Board in 2004 and 2006.”
J.A. 71 (citing 38 C.F.R. §§ 3.105(a), 20.1403, 20.1404).
He “request[ed] [a] specific ruling on C.U.E.,” J.A. 70, but
the regional office determined that it did not have juris-
diction to decide his CUE claim because “[r]egional offices
do not have the authority to overturn a Board . . . decision
in the absence of new and material evidence,” J.A. 67.
Mr. Garcia then asked for the matter to be sent to the
Board.
On July 29, 2008, Mr. Garcia submitted to the Board
a more detailed CUE motion challenging the Board’s 2006
decision denying his claim of service connection of his
6 GARCIA v. WILKIE
paranoid schizophrenia. 1 He argued, among other things,
that 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 connec-
tion “[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.
The Board denied the CUE motion in April 2010. It
found, among other things, that “there was no competent
evidence, to include lay testimony, establishing a continu-
ity of symptomatology since service.” J.A. 76. In July
2010, Mr. Garcia filed a motion to reconsider under 38
U.S.C. § 7103 and 38 C.F.R. §§ 20.1000, 20.1001, chal-
lenging that finding. He stated that “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,” J.A. 18—specifically, Mrs. Garcia’s 2004
Board testimony, which he claimed indicated the exist-
ence of a paranoia disorder when the two began dating
soon after he returned from service. Acting under 38
C.F.R. §§ 20.102(a) and 20.1001(c), the Board’s Deputy
Vice Chairman denied the motion to reconsider, conclud-
ing that, although Mrs. Garcia’s testimony may have
1 Neither party here suggests that the legal issues
presented to us call for distinguishing Mr. Garcia’s 2008
filing with the Board from his 2007 filing originally made
with the regional office. For simplicity, we refer to the
2008 filing as encompassing both.
GARCIA v. WILKIE 7
affected the weighing of evidence, including contrary
evidence, any failure to consider her testimony did not
constitute clear and unmistakable error.
Mr. Garcia appealed the Board’s denial of his CUE
motion to the Veterans Court. At that point, Mr. Garcia
argued, for the first time, that the Appeals Management
Center had denied him due process by “secretly liti-
gat[ing] against” him in “attack[ing]” Dr. Greene’s initial
finding regarding service connection and “suggest[ing]
what findings a medical examiner should make.” J.A. 93–
94. But the Veterans Court determined that the allega-
tion of a due process violation had not been presented to
the Board, so it dismissed Mr. Garcia’s appeal, for want of
jurisdiction, insofar as it made this allegation.
Mr. Garcia also argued to the Veterans Court that the
Board committed clear and unmistakable error by not
adequately considering Mrs. Garcia’s 2004 testimony.
The Secretary argued that Mr. Garcia had not properly
presented to the Board this allegation of clear and unmis-
takable error. But the Veterans Court, citing Mr. Garcia’s
motion to reconsider, “set aside” the 2010 Board decision
and remanded the case to the Board for full consideration
of the allegation in the first instance. J.A. 34.
On remand, the Board in October 2012 ruled against
the allegation—now made by Mrs. Garcia (substituted for
Mr. Garcia, who had passed away)—of clear and unmis-
takable error based on the asserted failure to consider
Mrs. Garcia’s 2004 testimony. In early 2013, Mrs. Garcia
submitted a motion to reconsider the 2012 Board decision.
She contended that the 2006 Board decision as to service
connection would have been manifestly different if the
Board had considered her 2004 testimony. In mid-2013,
the Deputy Vice Chairman denied the motion for recon-
sideration.
The early-2013 filing that includes the motion to re-
consider also includes a motion to vacate the 2012 Board
8 GARCIA v. WILKIE
decision. In that motion, Mrs. Garcia contended that the
2012 decision failed to address what she asserted was the
“obvious denial” of due process when, in 2005, the Appeals
Management Center returned Dr. Greene’s examination
report for further consideration, leading to a different
opinion by Dr. Greene. J.A. 37. In mid-2013, the Board
denied the motion to vacate, treating it as governed by 38
C.F.R. § 20.904 (“Vacating a decision”).
Mrs. Garcia appealed the Board’s October 2012 deci-
sion to the Veterans Court. She again argued that 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.
In that remand, the Board again ruled against the al-
legation of clear and unmistakable error based on Mrs.
Garcia’s 2004 testimony. Mrs. Garcia appealed that
decision to the Veterans Court. She again pressed both
the due process and 2004 testimony allegations of clear
and unmistakable error.
The Veterans Court found that neither allegation had
been presented to the Board in Mr. Garcia’s CUE motion
or before the Board issued its decision on that CUE mo-
tion in 2010. Garcia, 29 Vet. App. at 54. On that basis,
the Veterans Court ruled that a governing regulation, 38
C.F.R. § 20.1409(c), as construed in governing precedent,
“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.” Garcia, 29 Vet. App.
at 54. For that reason, the Veterans Court concluded that
the Board lacked jurisdiction to entertain either allega-
GARCIA v. WILKIE 9
tion and that the Veterans Court itself therefore lacked
jurisdiction, and it dismissed the appeal with prejudice.
Id. at 53, 56.
Mrs. Garcia timely appealed to this court. We have
jurisdiction pursuant to 38 U.S.C. § 7292.
II
This court has jurisdiction to review the Veterans
Court’s legal determinations, 38 U.S.C. § 7292(d)(1), and
to review and decide any challenge to the validity or
interpretation of a statute or regulation “to the extent
presented and necessary to a decision,” id. § 7292(c). But
this court does not have jurisdiction to review the Veter-
ans Court’s factual determinations, or its application of
law to the facts of a particular case, “[e]xcept to the extent
that an appeal under this chapter presents a constitu-
tional issue.” Id. § 7292(d)(2).
A
As this court explained in an en banc decision years
ago, Congress has provided for two mechanisms for a
claimant like Mr. Garcia to seek to revise a Board denial
of a claim for disability benefits after the denial has
become final. See Cook v. Principi, 318 F.3d 1334, 1337
(Fed. Cir. 2003) (en banc). One is through showing new
and material evidence. 38 U.S.C. § 5108; see 38 C.F.R.
§ 3.156(a). The second is through showing clear and
unmistakable error. 38 U.S.C. § 7111; see
38 C.F.R. § 20.1400. This case involves the latter form of
collateral attack—a request for revision of a Board deci-
sion based on clear and unmistakable error under § 7111,
which provides, in pertinent part:
(a) A decision by the Board is subject to revision
on the grounds of clear and unmistakable er-
ror. If evidence establishes the error, the prior
decision shall be reversed or revised. . . .
10 GARCIA v. WILKIE
(e) Such a request shall be submitted directly to
the Board and shall be decided by the Board on
the merits . . . .
The regulations pertaining to CUE motions to the
Board, contained in 38 C.F.R. subpart O, §§ 20.1400–
1411, set forth several requirements that are relevant
here. First: The substantive 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 differ-
ent but for the error.” 38 C.F.R. § 20.1403(a); see also id.
§ 20.1403(c) (“To warrant revision of a Board decision on
the grounds of clear and unmistakable error, there must
have been an error in the Board’s adjudication of the
appeal which, had it not been made, would have manifest-
ly changed the outcome when it was made. If it is not
absolutely clear that a different result would have ensued,
the error complained of cannot be clear and unmistaka-
ble.” (emphasis added)).
Second: The pleading requirements for a CUE motion
are demanding:
Specific allegations required. The motion must
set forth clearly and specifically the alleged clear
and unmistakable error, or errors, of fact or law in
the Board decision, the legal or factual basis for
such allegations, and why the result would have
been manifestly different but for the alleged error.
Non-specific allegations of failure to follow regula-
tions or failure to give due process, or any other
general, non-specific allegations of error, are in-
sufficient to satisfy the requirement of the previ-
ous sentence. Motions which fail to comply with
the requirements set forth in this paragraph shall
GARCIA v. WILKIE 11
be dismissed without prejudice to refiling under
this subpart.
Id. § 20.1404(b). Pursuant to that regulation, this court
has ruled that “each ‘specific’ assertion of CUE constitutes
a claim that must be the subject of a decision by the
[Board] before the Veterans Court can exercise jurisdic-
tion over it.” Andre v. Principi, 301 F.3d 1354, 1361 (Fed.
Cir. 2002); see 38 U.S.C. §§ 7252, 7261. CUE motions,
unlike filings in direct appeals, are not liberally con-
strued; instead, the regulations governing CUE motions
“place the onus of specifically raising each issue on the
claimant.” Robinson v. Shinseki, 557 F.3d 1355, 1360
(Fed. Cir. 2009) (citing § 20.1404(b)); see also Andrews v.
Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (require-
ment to liberally construe pleadings does not apply to
CUE motions filed by counsel).
Third: Under 38 C.F.R. § 20.1409, a regulation adopt-
ed pursuant to 38 U.S.C. § 501(a) and generally upheld in
Disabled American Veterans v. Gober, 234 F.3d 682, 702
(Fed. Cir. 2000), a claimant may not freely file multiple
CUE challenges to the same Board decision regarding a
particular claim for benefits. Section 20.1409(a) first
identifies what a “final” decision on a CUE motion is: “A
[Board] decision on a motion filed by a party or initiated
by the Board pursuant to [subpart O, 38 C.F.R.
§§ 20.1400–1411, governing CUE challenges to Board
decisions] will be stamped with the date of mailing on the
face of the decision, and is final on such date.” 38 C.F.R.
§ 20.1409(a); see also id. § 20.1409(b) (certain dismissals
without prejudice and referrals of CUE motions to a
regional office are not “final decision[s] of the Board”
under § 20.1409). Section 20.1409(c) then states an anti-
multiplicity rule:
Once there is a final decision on a motion under
this subpart relating to a prior Board decision on
an issue, that prior Board decision on that issue is
12 GARCIA v. WILKIE
no longer subject to revision on the grounds of
clear and unmistakable error. Subsequent mo-
tions relating to that prior Board decision on that
issue shall be dismissed with prejudice.
This court has approved the Secretary’s reading of
§ 20.1409(c), a rule adopted in 1998, to “permit[] only one
CUE challenge to a Board decision on any given disability
claim.” Hillyard v. Shinseki, 695 F.3d 1257, 1260 (Fed.
Cir. 2012) (deferring to agency explanation of § 20.1409(c)
in Proposed Rules, 63 Fed. Reg. 27,534, 27,538 (Dep’t of
Veterans Affairs May 19, 1998), as a reasonable interpre-
tation, and holding that the regulation barred the claim-
ant from filing a second CUE motion after the Board’s
decision on the claimant’s first CUE motion became final,
even though the allegations of error differed).
B
On appeal, Mrs. Garcia argues that the Veterans
Court erred in holding that the Board was barred by
regulation from considering the allegations of clear and
unmistakable error now at issue (concerning constitution-
al due process and Mrs. Garcia’s 2004 testimony) because
she (more precisely, her late husband) did not present
those CUE allegations to the Board in the 2008 CUE
motion itself or at any time before the Board’s 2010
decision on that motion. We address only the two focused
challenges to the Veterans Court’s ruling that Mrs. Garcia
presents here. We reject those challenges.
We note that Mrs. Garcia does not present any chal-
lenge within this court’s jurisdiction under 38 U.S.C.
§ 7292(c) or (d)(1) to the Veterans Court’s interpretation
of § 20.1409(c) as reaching beyond the situation of a
separate, new CUE motion filed after a Board decision on
a first CUE motion attacking the same claim determina-
tion. That was the situation in Hillyard—where, in fact,
the second CUE motion was filed after the Board’s deci-
sion on the first CUE motion became final in the strong
GARCIA v. WILKIE 13
sense that available appellate direct review of the decision
was complete. 695 F.3d at 1258 (explaining that, after
the Board denied the first CUE motion and the Veterans
Court affirmed, the Board could not later entertain a
second CUE motion attacking the same disability deter-
mination by the Board). 2 Hillyard thus had no occasion to
interpret the regulation’s application to other situations.
Indeed, the court in Hillyard was addressing a different
question, stating that the appeal presented “a solitary
legal question: what the term ‘issue’ means in 38 C.F.R.
§ 20.1409(c).” Id.
Mrs. Garcia does not challenge the interpretation of
§ 20.1409(c) as reaching various situations where just one
formal CUE motion is filed. One such situation involves
CUE allegations that are presented in the continuing
proceedings on the initial motion itself, but only after the
motion was filed. Garcia, 29 Vet. App. at 54. As an
example of that situation, the new allegations might be
presented in the proceedings on the initial CUE motion
after the Board issues a “final” decision on the initial
motion under § 20.1409(a) and after that decision is later
set aside on appeal and the matter remanded. Any ques-
tions about, for example, the availability of amendments
to a CUE motion during the Board’s consideration, or on
2 See Claimant-Appellant’s Br., Hillyard v.
Shinseki, No. 2011-7157, 2011 WL 5561120, at *2–3 (Fed.
Cir. Oct. 20, 2011) (stating that Mr. Hillyard filed a first
CUE motion in 2001, the Board denied that motion, the
Veterans Court affirmed the Board’s denial in 2003, Mr.
Hillyard filed an appeal to the Federal Circuit that he
then withdrew, and Mr. Hillyard filed his second CUE
motion several years later, in 2006).
14 GARCIA v. WILKIE
remand after the Board’s decision is set aside, are not
before us. 3
1
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. Oral Arg. at 5:40–6:00; id. at
11:42–12:00; see J.A. 130–32 (2006 brief on behalf of Mr.
Garcia stating that Dr. Greene’s report and addendum
are part of the claim file and quoting from the Center’s
follow-up request). 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. See
Garcia Br. 2; VA Br. 8; J.A. 9–10 (Veterans Court noting
that the parties did not dispute this point); see also
J.A. 93 (Mr. Garcia’s 2011 brief to Veterans Court). 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.
3 Mrs. Garcia also does not challenge the Veterans
Court’s ruling that it lacked jurisdiction to review the
denials of the motions to reconsider and the motion to
vacate. Garcia, 29 Vet. App. at 56 (relying on Mayer v.
Brown, 37 F.3d 618, 619 (Fed. Cir. 1994) (discussing
motions to reconsider), and Harms v. Nicholson, 20 Vet.
App. 238, 243 (2006) (discussing motions to vacate)).
GARCIA v. WILKIE 15
The Veterans Court drew the conclusion that the alle-
gation of a due process violation was no longer permitted
at the time Mr. Garcia presented it. According to the
Veterans Court, that conclusion follows from 38 C.F.R.
§ 20.1409(c)’s bar on presenting a CUE challenge regard-
ing a claim for benefits where that challenge was omitted
from an earlier-filed CUE motion regarding the same
claim for benefits. Garcia, 29 Vet. App. at 54.
Mrs. Garcia makes only one argument against the
Veterans Court’s conclusion as to the due process allega-
tion. She contends that a constitutional challenge is
special and simply is not subject to the rule against
successive allegations of CUE in the same underlying
Board decision. We see no sound basis for adopting the
suggested exception.
In Cook, the en banc court held that the principles of
finality and res judicata generally apply to a claim deter-
mination by the VA. 318 F.3d at 1336–37; see Astoria
Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107
(1991) (“We have long favored application of the common-
law doctrines of collateral estoppel (as to issues) and res
judicata (as to claims) to those determinations of adminis-
trative bodies that have attained finality.”). Congress
may create exceptions to the finality of a claim determina-
tion, as it did for Board determinations upon a showing of
(1) new and material evidence, 38 U.S.C. § 5108, or
(2) CUE, id. §§ 5109A, 7111. But the court explained in
Cook that there is no “third exception” even for “grave
procedural error.” 318 F.3d at 1337, 1340–41, 1341 n.9. 4
4 The final VA claim determination at issue in Cook
was that of a regional office, because the claimant in that
case did not appeal the regional office’s determination.
318 F.3d at 1335–36. But the reasoning in Cook applies
equally to a final determination of the Board. See id. at
16 GARCIA v. WILKIE
Adopting Mrs. Garcia’s proposal to exempt procedural
constitutional challenges from all CUE constraints, even
those concerning timing, would run counter to Cook’s
rulings. Mrs. Garcia has not established any inherent
limitation on “finality” applicable here or the availability
of a procedural vehicle other than a CUE motion as a
basis for her assertion. (She does not argue new and
material evidence.) And we need not explore the broad
question whether, after Cook, there could be a constitu-
tional basis for allowing presentation of some due process
allegations to revise otherwise-final VA decisions without
proceeding by way of a CUE motion or a motion based on
new and material evidence. Even if there could be, which
we need not say, there is no such basis in this case for
overriding the CUE regulation on timely presentation of
challenges. 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 chal-
lenge on this basis to the initial CUE motion, with CUE
relief on this basis not thereafter available. See United
States v. Mezzanatto, 513 U.S. 196, 200–01 (1995) (consti-
tutional arguments may be waived); Singleton v.
Shinseki, 659 F.3d 1332, 1334 n.2 (Fed. Cir. 2011) (same).
Mrs. Garcia contends that this court’s decision in
Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009),
issued several years after Cook, suggests that Cook is no
longer good law. The court in Cushman reviewed a collat-
eral challenge to a VA claim determination and concluded
1337 (noting the same two statutory exceptions apply to
the finality of decisions by the Secretary and by the
Board); id. at 1339 (explaining the purpose of the rule of
finality and Congress’s understanding of that rule in
enacting the statutes codifying CUE challenges to both
Secretary and Board determinations).
GARCIA v. WILKIE 17
that the presentation of an improperly altered medical
record in the original agency proceeding violated the
veteran’s constitutional right to due process. Id. at 1291.
In assessing that claim, the court stated that it “ha[d]
jurisdiction and authority to consider a free-standing
constitutional issue independently from the CUE frame-
work typically applicable to appellate review of veterans’
claims.” Id. at 1296 (citing In re Bailey, 182 F.3d 860,
869–70 (Fed. Cir. 1999)).
We do not read that statement to mean what Mrs.
Garcia urges—that a constitutional challenge is generally
free of the regulatory timely-presentation limits that
channel CUE challenges as an exception to finality prin-
ciples. Most specifically, the statement does not address
timely-presentation limits. That is not surprising: there
was no timeliness issue in Cushman. The court observed
that “[i]t [was] not disputed that [Mr. Cushman’s] free-
standing due process claim was timely raised.” Id. at
1298 n.2; see also id. at 1294 (noting statement by gov-
ernment counsel in earlier proceeding that “Mr. Cushman
would be free to raise those claims [including the due
process claim] before the Board”).
Beyond that, nothing in Cushman addresses or seeks
to distinguish (much less purports to modify) Cook’s en
banc ruling as to the limited avenues for collateral attacks
on otherwise-final VA claim determinations. There was
no issue about Mr. Cushman having proceeded outside
the authorized avenues: Mr. Cushman raised his due
process contention within a CUE challenge that the
government accepted as proper. Id. at 1294. The court’s
citation to In re Bailey for the reference to a “free-
standing constitutional issue” merely pointed to Bailey’s
characterization of such an issue as “one not also involv-
ing a challenge to the interpretation or validity of a stat-
ute or regulation” but that “otherwise meets the
limitations of the jurisdictional statute [38 U.S.C.
§ 7292].” Bailey, 182 F.3d at 869–70. The court later
18 GARCIA v. WILKIE
noted Mr. Cushman’s argument “that the burdens of proof
applicable to CUE claims do not apply to his free-standing
due process claim” and “agree[d] that the burdens of proof
typically applicable to due process claims also apply to
such claims raised in the context of veteran’s benefits.”
Cushman, 576 F.3d at 1299 n.3. But that statement
requires no more than applying the normal constitutional
“burdens of proof” for disturbing the results of an adjudi-
cation based on due process defects, even when the issue
is raised within a CUE challenge. It does not question the
rules that channel such collateral challenges within
defined limits where, as here, there is no separate due
process problem with adhering to those limits.
For those reasons, we reject Mrs. Garcia’s challenge to
the Veterans Court’s application of 38 C.F.R. § 20.1409(c)
to bar her due process allegation of CUE. 5
2
As for the CUE allegation based on Mrs. Garcia’s 2004
testimony, Mrs. Garcia makes just one argument: that
this allegation was actually presented in the initial CUE
motion. She relies on that motion’s statement that the
“[c]orrect facts were not before the Board in 2004 and
2006.” J.A. 71.
5 The government argues that Andre, 301 F.3d
1354, separately deprived the Veterans Court of jurisdic-
tion over Mrs. Garcia’s due process claim. We do not
reach that argument. The Veterans Court decision before
us does not rely on Andre, and we affirm based on the
§ 20.1409(c) ground on which the Veterans Court relied.
We note that, as this court explained in Hillyard, the
Andre case did not involve § 20.1409(c) or a CUE chal-
lenge to a Board decision, but instead involved a CUE
challenge to a regional office decision, to which
§ 20.1409(c) does not apply. Hillyard, 695 F.3d at 1260.
GARCIA v. WILKIE 19
This argument, however, is a challenge to the Veter-
ans Court’s factual determination that the particular
allegation of CUE—this one not a constitutional chal-
lenge—was omitted from the initial CUE motion, having
been presented only in July 2010 on a motion to reconsid-
er the Board’s April 2010 denial of the motion. Garcia, 29
Vet. App. at 54. We do not have jurisdiction to review
that factual determination regarding a non-constitutional
issue. See 38 U.S.C. § 7292(d)(2)(A); Comer v. Peake, 552
F.3d 1362, 1372 (Fed. Cir. 2009) (“Whether a veteran has
raised a particular [CUE challenge] is a factual determi-
nation, outside the purview of our appellate authority.”);
see also Kernea v. Shinseki, 724 F.3d 1374, 1382 (Fed. Cir.
2013) (no jurisdiction to consider whether claimant raised
a valid CUE challenge because that “would require us to
review and interpret the contents of her [CUE motion]”).
We have before us no challenge to the application of
§ 20.1409(c) to bar the allegation regarding Mrs. Garcia’s
2004 testimony if we accept, as we must, the Board’s
factual findings about when that allegation was first
presented.
III
We therefore affirm the Veterans Court’s decision.
AFFIRMED
Costs
No costs.