Veteranclaims’s Blog

March 10, 2014

FedCir; Larson v. Shinseki, No. 2013-7060(Decided: March 10, 2014); CUE; Motion to Modify

Excerpts from decision below:

“We do not intend to disturb the affirmance of the two CUE claims that Mr. Larson raised in this case; indeed, he himself effectively conceded the merits of those two
LARSON v. SHINSEKI 5

claims by limiting his appeal solely to his motion to modify the Board’s decision. However, Mr. Larson’s motion to modify raises the possibility that the Board’s decision—which the Veterans Court affirmed—could be interpreted as a ruling on a third CUE claim relating to whether the correct facts were before the adjudicator. We therefore reverse the Veterans Court’s denial of Mr. Larson’s motion to modify the Board’s decision as moot, and remand for the court to consider the merits of that motion.”

========================

 

United States Court of Appeals for the Federal Circuit
______________________
THOMAS L. LARSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7060
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-0864, Judge Lawrence B.
Hagel.
______________________
Decided: March 10, 2014
______________________
BARBARA J. COOK, of Cincinnati, Ohio, argued for
claimant-appellant.
ALLISON KIDD-MILLER, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent-appellee. With her on the brief were STUART
F. DELERY, Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant
Director. Of counsel on the brief were MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel, and
2 LARSON v. SHINSEKI

CHRISTINA L. GREGG, Attorney, United States Department
of Veterans Affairs, of Washington, DC.
______________________
Before PROST, WALLACH, and CHEN, Circuit Judges.
PROST, Circuit Judge.

Thomas L. Larson appeals from a decision of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”), which affirmed a decision of the Board of Veterans’ Appeals (“Board”) denying Mr. Larson’s claim that there had been a clear and unmistakable error in his 1969 disability rating decision. For the reasons that follow, we reverse in part and remand for further consideration.

BACKGROUND
Mr. Larson is a Vietnam War veteran who suffered a gunshot wound in service. In 1969, he was granted a 40% combined disability rating. He did not appeal that decision, and it became final. Then, in 2007, Mr. Larson sought to revise that decision on the grounds of clear and
unmistakable error (“CUE”). In order to establish CUE, a claimant must demonstrate either that (1) “the correct facts, as they were known at the time, were not before the adjudicator,” or (2) “the statutory or regulatory provisions extant at the time were incorrectly applied.” Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)).
Mr. Larson argued that the adjudicator had misapplied the diagnostic codes in effect at the time of the 1969 decision. The Regional Office denied his claim, and the Board affirmed. In its opinion, the Board clearly identified Mr. Larson’s two CUE claims, both relating to the
application of the correct diagnostic codes. Then, after rejecting each of Mr. Larson’s claims, the Board concluded: “the Veteran has not demonstrated that the law in effect during that time was incorrectly applied or that the
LARSON v. SHINSEKI 3

correct facts, as they were known at the time, were not
before the adjudicators.” J.A. 33.
Mr. Larson then appealed to the Veterans Court. He
initially challenged the merits of the Board’s decision
denying the two CUE claims he had raised before the
Board. However, he later filed a motion to modify the
Board’s decision by deleting the phrase “or that the correct
facts, as they were known at the time, were not
before the adjudicators.” J.A. 35. Mr. Larson was concerned
that the challenged language could be interpreted
as a ruling on a “correct facts” CUE claim, thereby precluding
him from raising such a claim in the future. In
his motion, he agreed that “if that phrase is deleted, the
[Veterans Court] could otherwise affirm the Board’s
decision.” J.A. 36.
The Veterans Court dismissed Mr. Larson’s motion to
modify the Board’s decision as moot, noting that “Mr.
Larson has exhausted his opportunity to raise further
assertions of clear and unmistakable error.” Larson v.
Shinseki, No. 11-0864, 2013 WL 93357, at *3 (Vet. App.
Jan. 9, 2013). That conclusion was based on the Veterans
Court’s belief that Hillyard v. Shinseki, 24 Vet. App. 343
(2011), aff’d 695 F.3d 1257 (Fed. Cir. 2012), limits a
claimant to only one opportunity to raise any and all CUE
allegations. The court therefore affirmed the underlying
Board decision in its entirety. Id. at *4.
Mr. Larson now appeals the Veterans Court’s ruling.
We have jurisdiction pursuant to 38 U.S.C. § 7292(a), (c).
DISCUSSION
This court’s review of a Veterans Court’s decision is
limited to questions of law, which we review without
deference. 38 U.S.C. § 7292(d). We may set aside the
Veterans Court’s legal conclusions if they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” Id.
4 LARSON v. SHINSEKI
There is no dispute in this case that the Veterans
Court erred. The court relied on Hillyard for the proposition
that “an appellant has only one opportunity to raise
any allegation of clear and unmistakable error for each
claim decided in a Board decision.” Larson, 2013 WL
93357, at *3. However, in Hillyard, the Veterans Court
was interpreting 38 C.F.R. § 20.1409(c), which relates to
the number of CUE motions a claimant may file with
respect to any particular Board decision. See 24 Vet. App.
at 354. A different regulation—38 C.F.R. § 3.105(a)—
relates to the process of filing CUE motions relating to
decisions by Regional Offices. This court has twice held
that § 3.105(a) permits a veteran to raise a new argument
that the Regional Office committed CUE “at any time.”
Andre v. Principi, 301 F.3d 1354, 1362 (Fed. Cir. 2002);
see also Andrews v. Nicholson, 421 F.3d 1278, 1284 (Fed.
Cir. 2005).
Thus, there is no debate that the Veterans Court’s
dismissal of Mr. Larson’s motion to modify the Board’s
decision as moot was legally erroneous. Because Mr.
Larson only challenged the legal basis for the Regional
Office’s 1969 determination, and did not assert that the
adjudicators did not have the correct facts before them at
the time of the decision, Mr. Larson remains free to raise
a “correct facts” CUE claim in the future at the Regional
Office. However, if the challenged language in the
Board’s decision is interpreted as a ruling on just such a
“correct facts” theory, Mr. Larson would indeed be precluded
from re-raising that same CUE theory in the
future. Thus, his request for clarification or modification
of the Board’s decision was anything but moot.
The government nevertheless urges us to affirm the
Veterans Court’s judgment because the affirmance of the
Board’s decision on Mr. Larson’s CUE claims was correct.
We do not intend to disturb the affirmance of the two CUE claims that Mr. Larson raised in this case; indeed, he himself effectively conceded the merits of those two
LARSON v. SHINSEKI 5

claims by limiting his appeal solely to his motion to modify the Board’s decision. However, Mr. Larson’s motion to modify raises the possibility that the Board’s decision—which the Veterans Court affirmed—could be interpreted as a ruling on a third CUE claim relating to whether the correct facts were before the adjudicator. We therefore reverse the Veterans Court’s denial of Mr. Larson’s motion to modify the Board’s decision as moot, and remand for the court to consider the merits of that motion.
AFFIRMED-IN-PART, REVERSED-IN-PART, AND REMANDED
COSTS
Mr. Larson is awarded costs.

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