Garcia v. Wilkie
Opinion
*729 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 connected to his military service. The Board of Veterans' Appeals denied his claim in 2006. After initially appealing 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 Veterans 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
,
I
A
Mr. Garcia served in the United States Army from 1952 to 1954. The military's records of his medical treatment 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 reveals a normal psychiatric state and, more generally, no severe illnesses or injuries.
Mr. Garcia first saw Dr. John Smoker, a private physician, in 1965 for a burn from a welding accident. In 1969, Dr. Smoker diagnosed Mr. Garcia with, and prescribed 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 Veterans 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 examination, directing the examiner to "provide a current diagnosis and indicate whether any mental disorder currently shown is characterized by paranoia" and to state "the medical probabilities that it is attributable to the veteran's period of military service." J.A. 130.
The Appeals Management Center, processing the remand, requested a psychiatric examination on January 4, 2005. A VA examiner, Dr. Greene, conducted the examination on February 3, 2005. Dr. Greene's report leaves unclear if she looked at Mr. Garcia's claim file and medical *730 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 diagnosis 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).
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] reviewed 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 Conduct 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.
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 service connection for Mr. Garcia's condition. J.A. 127.
On appeal to the Board once again, Mr. Garcia, through the American Legion as his non-attorney representative, 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 benefits. The brief refers to and quotes from the Appeals Management Center's October 2005 request to Dr. Greene,
see
J.A. 130-31;
B
In August 2007, Mr. Garcia initiated a collateral challenge 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
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 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 connection "[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 continuity of symptomatology since service." J.A. 76. In July 2010, Mr. Garcia filed a motion to reconsider under
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 litigat[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 allegation 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 unmistakable 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.
*732 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 unmistakable 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 reconsideration.
The early-2013 filing that includes the motion to reconsider also includes a motion to vacate the 2012 Board 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
Mrs. Garcia appealed the Board's October 2012 decision 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 allegation 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 motion in 2010.
Garcia
,
Mrs. Garcia timely appealed to this court. We have jurisdiction pursuant to
II
This court has jurisdiction to review the Veterans Court's legal determinations,
A
As this court explained in an en banc decision years ago, Congress has provided
*733
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
,
(a) A decision by the Board is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised. ...
(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 different but for the error."
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 regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.
Third
: Under
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.
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
,
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 constitutional 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 challenge within this court's jurisdiction under
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
,
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.
The Veterans Court drew the conclusion that the allegation 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
Mrs. Garcia makes only one argument against the Veterans Court's conclusion as to the due process allegation. 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 determination by the VA.
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 constitutional 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 challenge on this basis to the initial CUE motion, with CUE relief on this basis not thereafter available.
See
United States v. Mezzanatto
,
Mrs. Garcia contends that this court's decision in
Cushman v. Shinseki
,
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 principles. 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] freestanding due process claim was timely raised."
*737
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 "freestanding constitutional issue" merely pointed to
Bailey
's characterization of such an issue as "one not also involving a challenge to the interpretation or validity of a statute or regulation" but that "otherwise meets the limitations of the jurisdictional statute [
For those reasons, we reject Mrs. Garcia's challenge to the Veterans Court's application of
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.
This argument, however, is a challenge to the Veterans Court's factual determination that the particular allegation of CUE-this one not a constitutional challenge-was omitted from the initial CUE motion, having been presented only in July 2010 on a motion to reconsider the Board's April 2010 denial of the motion.
Garcia
,
III
We therefore affirm the Veterans Court's decision.
AFFIRMED
Costs
No costs.
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.
See
Claimant-Appellant's Br.,
Hillyard v. Shinseki
, No. 2011-7157,
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
,
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.
The government argues that
Andre
,
Reference
- Full Case Name
- Pauline GARCIA, Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee
- Cited By
- 6 cases
- Status
- Published