Veteranclaims’s Blog

August 17, 2012

Hillyard v. Shinseki, No. 2011-7157(Decided: August 17, 2012); CUE; Interpertation Rule 1409(c)

Excerpts from decision below:
“The VA’s interpretation of Rule 1409(c) was clearly noted in its notice of rulemaking issued some fourteen years ago. In that notice, the VA concretely explained why it is “clearly important that a
moving party carefully determine all possible bases for CUE before he or she files a motion” for revision:
For example, if a party challenged a decision on service connection for failing to apply the proper diagnostic code in the Schedule for Rating Disabilities, 38 CFR part 4, and the Board denied the
motion, a subsequent motion which alleged that the Board failed to apply the presumption of sound condition at the time of entry into service, 38 U.S.C. 1111, would be dismissed with prejudice.
HILLYARD v. SHINSEKI 7
63 Fed. Reg. 27,538. In other words, the VA clearly explained that Rule 1409(c) permits only one CUE challenge to a Board decision on any given disability claim.

“CUE challenges to RO decisions—under 38 U.S.C. § 5109A and 38 C.F.R. § 3.105—have no effect on CUE challenges to Board decisions, which fall under a different statute and regulations—38 U.S.C. § 7111 and
38 C.F.R. §§ 20.1401-1411.”
===========================

United States Court of Appeals
for the Federal Circuit
__________________________
JOSEPH C. HILLYARD,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7157
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1733, Judge Lawrence B.
Hagel.
___________________________
Decided: August 17, 2012
___________________________
KENNETH M. CARPENTER, Carpenter, Chartered of
Topeka, Kansas, argued for claimant-appellant.
MARTIN F. HOCKEY, JR. Assistant Director, Commercial
Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent-appellee. With him on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and TODD M. HUGHES, Deputy Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
HILLYARD v. SHINSEKI 2
Assistant General Counsel and JONATHAN E. TAYLOR,
Attorney, United States Department of Veterans Affairs,
of Washington, DC
__________________________
Before LINN, MOORE, and O’MALLEY, Circuit Judges.
MOORE, Circuit Judge.
Mr. Hillyard appeals from a decision of the Court of
Appeals for Veterans Claims (Veterans Court) affirming
the Board of Veterans Appeals’ (Board’s) dismissal of Mr.
Hillyard’s second request for revision as barred by
38 C.F.R. § 20.1409(c). For the reasons set forth below,
we affirm.
BACKGROUND
Mr. Hillyard served in the United States Army. While
in service, he suffered a head injury and was hospitalized
for two weeks. After leaving the service, Mr. Hillyard
filed a single claim for service connection for a mental
condition, which he attributed to his in-service head
injury. The Veterans Administration (VA) denied his
claim and the Board affirmed. Mr. Hillyard filed a request
for revision alleging clear and unmistakable error
(CUE) by the Board in failing to grant service connection
for an adjustment disorder or for a decline in cognitive
ability due to a head injury. The Board denied Mr.
Hillyard’s request for revision and the Veterans Court
affirmed. Mr. Hillyard later filed a second request for
revision alleging CUE by the Board in failing to consider
and apply 38 U.S.C. §§ 105(a) and 1111, a different CUE
allegation from the one he made in his first request. The
Board dismissed Mr. Hillyard’s second request for revision
with prejudice, concluding 38 C.F.R. § 20.1409(c)
permitted only one request for revision to be filed. The
Veterans Court affirmed. Mr. Hillyard appeals, arguing
HILLYARD v. SHINSEKI 3
that § 20.1409(c) permits multiple CUE challenges as long
as each challenge is based on a different CUE theory. We
have jurisdiction under 38 U.S.C. § 7292.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Guillory v. Shinseki, 603 F.3d
981, 986 (Fed. Cir. 2010). We have jurisdiction over “all
relevant questions of law, including interpreting constitutional
and statutory provisions.” 38 U.S.C. § 7292(d)(1).
We lack jurisdiction over any “challenge to a factual
determination” or “challenge to a law or regulation as
applied to the facts of a particular case” absent a constitutional
issue. 38 U.S.C. § 7292(d)(2). We set aside a
Veterans Court decision only if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law . . . .” 38 U.S.C. § 7292(d)(1)(A).
This case presents a solitary legal question: what the
term “issue” means in 38 C.F.R. § 20.1409(c). The Veterans
Court concluded, based in significant part on our
decision in Disabled American Veterans v. Gober, 234 F.3d
682 (Fed. Cir. 2000), that “issue” is synonymous with
“claim.” Hillyard v. Shinseki, 24 Vet. App. 343, 353
(2011). The Veterans Court held that § 20.1409 limits a
veteran to one request for revision, or CUE challenge, for
each disability claim finally decided by the Board, although
that one CUE challenge may contain numerous
arguments or theories. Id. at 353-54. Mr. Hillyard contends
that “issue” in § 20.1409 corresponds to “theory” or
specific CUE allegation, which means a veteran may file
multiple CUE challenges to a disability claim finally
decided by the Board as long as each challenge is based on
a different theory.
Revision of Board decisions based on CUE is authorized
by 38 U.S.C. § 7111. See Disabled Am. Veterans, 234
HILLYARD v. SHINSEKI 4
F.3d at 686-87. To implement § 7111, the VA promulgated
regulations including 38 C.F.R. §§ 20.1401 and
20.1409 (Rules 1401 and 1409). Id. at 687-88. Rule
1409(c) states:
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
no longer subject to revision on the grounds of
clear and unmistakable error. Subsequent motions
relating to that prior Board decision on that
issue shall be dismissed with prejudice.
38 C.F.R. § 1409(c) (emphasis added). Rule 1401(a)
defines “issue”:
Unless otherwise specified, the term “issue” in
this subpart means a matter upon which the
Board made a final decision (other than a decision
under this subpart). . . .
38 C.F.R. § 1401(a). In its notice of rulemaking, the VA
explained the operation of then proposed Rule 1409:
Proposed Rule 1409 . . . would provide that, once
there is a final decision on a motion under the
proposed subpart . . . the prior Board decision on
that issue would no longer be subject to revision on
the grounds of CUE and that subsequent motions
on such decisions would be dismissed with prejudice.
For example, if a party challenged a decision
on service connection for failing to apply the
proper diagnostic code in the Schedule for Rating
Disabilities, 38 CFR part 4, and the Board denied
the motion, a subsequent motion which alleged
that the Board failed to apply the presumption of
sound condition at the time of entry into service,
38 U.S.C. 1111, would be dismissed with preju-
HILLYARD v. SHINSEKI 5
dice. It would be clearly important that a moving
party carefully determine all possible bases for
CUE before he or she files a motion under the proposed
subpart.
63 Fed. Reg. 27,538 (proposed May 19, 1998) (codified at
38 C.F.R. pt. 20) (emphasis added). After the VA published
the final rules, several parties challenged their
validity. We considered those challenges and held that
the rules at issue in this case are valid. Disabled Am.
Veterans, 234 F.3d at 693-94 (Rule 1401); id. at 702 (Rule
1409).
Mr. Hillyard does not challenge the validity of the
rules on appeal. Rather, he contends that our decisions in
Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002), and
Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005),
hold that “issue” means a specific CUE allegation—the
“matter” upon which the Board makes a final determination.
Mr. Hillyard argues that these cases hold that
multiple requests for revision can be made to challenge
VA regional office (RO) decisions and that there is no
reason for Board decisions to be treated differently. Mr.
Hillyard argues that this court did not address in Disabled
American Veterans the specific question of whether
an additional CUE challenge can be brought when it
presents a novel theory not previously considered by the
Board.
Mr. Hillyard argues that Robinson v. Shinseki, 557
F.3d 1355 (Fed. Cir. 2009), which recognized the specific
nature of CUE challenges, held that each new CUE
theory is independent for res judicata purposes and that
unraised CUE theories could be raised in a new action.
Mr. Hillyard argues that Disabled American Veterans,
Andre, Andrews, and Robinson collectively show that an
“issue” decided by the Board in a request for revision
HILLYARD v. SHINSEKI 6
under 38 U.S.C. § 7111 is the same “issue” considered by
the Board in an appeal from a RO decision—the ‘“theory’
or specific allegation of [CUE] presented in the request for
revision.” Appellant Br. 16. Mr. Hillyard thus contends
that a veteran can raise multiple CUE challenges to
Board decisions under § 20.1409(c) as long as each CUE
challenge raises a new “issue.”
Mr. Hillyard and the government dispute whether
this issue was decided in Disabled American Veterans.
Regardless, the outcome is the same because we must
defer to an agency’s reasonable interpretation of its own
regulations. Cathedral Candle Co. v. U.S. Int’l Trade
Comm’n, 400 F.3d 1352, 1364 (Fed. Cir. 2005) (“[I]t is well
settled that an agency’s interpretation of its own regulations
is entitled to broad deference. . . . [T]he agency’s
construction of its own regulations is ‘of controlling weight
unless it is plainly erroneous or inconsistent with the
regulation.’” (quoting Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945))). The VA’s interpretation of
Rule 1409(c) was clearly noted in its notice of rulemaking
issued some fourteen years ago. In that notice, the VA
concretely explained why it is “clearly important that a
moving party carefully determine all possible bases for
CUE before he or she files a motion” for revision:
For example, if a party challenged a decision on
service connection for failing to apply the proper
diagnostic code in the Schedule for Rating Disabilities,
38 CFR part 4, and the Board denied the
motion, a subsequent motion which alleged that
the Board failed to apply the presumption of
sound condition at the time of entry into service,
38 U.S.C. 1111, would be dismissed with prejudice.
HILLYARD v. SHINSEKI 7
63 Fed. Reg. 27,538. In other words, the VA clearly
explained that Rule 1409(c) permits only one CUE challenge
to a Board decision on any given disability claim.

The interpretation proffered by the VA in this case is no
different from the one set forth in its notice of rulemaking
and is consistent with the language of the regulation.
The authority cited by Mr. Hillyard does not persuade
us otherwise. Mr. Hillyard’s reliance on Andre and Andrews
is misplaced because those cases dealt with RO
decisions. CUE challenges to RO decisions—under 38
U.S.C. § 5109A and 38 C.F.R. § 3.105—have no effect on
CUE challenges to Board decisions, which fall under a
different statute and regulations—38 U.S.C. § 7111 and
38 C.F.R. §§ 20.1401-1411.
Andre and Andrews do not
apply here.
Mr. Hillyard’s reliance on Robinson is also misguided.
Robinson was about the obligation to liberally read filings;
it did not address a CUE challenge. 557 F.3d at
1359 (“This case presents the question whether the obligation
to liberally read filings [under 38 C.F.R. § 20.202]
applies to filings by counsel in the direct appeal phase of
proceedings before the Board.”). Although we explained
in Robinson that CUE claims are different from direct
appeals in the context of determining whether pleadings
must be read “in a liberal manner,” there was no CUE
claim at issue in Robinson. The cases cited by Mr.
Hillyard fail to provide any reason that we should not
defer to the VA’s reasonable interpretation.

CONCLUSION
The interpretation of Rule 1409(c) proffered by the VA
is consistent with the language of the regulation and is in
harmony with the VA’s description of the regulation in its
notice of rulemaking. Accordingly, we defer to the VA’s
interpretation.
HILLYARD v. SHINSEKI
8
AFFIRMED

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

%d bloggers like this: