Garcia v. Wilkie, 908 F.3d 728

Background

Teofila Garcia (veteran) filed for service-connection for paranoid schizophrenia in 2002; the Board denied the claim in 2006 and that decision became final after Mr. Garcia dismissed his appeal to the Veterans Court.
Mr. Garcia filed a CUE (clear and unmistakable error) motion in 2008 challenging the 2006 Board decision; the Board denied the CUE motion in 2010.
After the 2010 denial, Mr. Garcia (and later his widow, Pauline Garcia, substituted) raised two new CUE theories: (1) a due-process claim that the Appeals Management Center improperly pressured the VA examiner, and (2) that the Board failed to consider Mrs. Garcia’s 2004 hearing testimony establishing continuity of symptoms.
The Veterans Court concluded those particular CUE allegations were not presented in the original 2008 CUE motion and held they were barred by 38 C.F.R. § 20.1409(c) (precluding subsequent CUE challenges to the same Board decision), dismissing the appeal with prejudice.
On appeal to the Federal Circuit, the court affirmed: it rejected an argument that procedural due-process CUE claims are exempt from timely-presentation rules and explained it lacked jurisdiction to review the Veterans Court’s factual finding about whether the testimony-based CUE allegation had been raised earlier.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether due-process CUE claim raised after Board’s CUE decision is barred by 38 C.F.R. § 20.1409(c)	Due-process challenges are special and should not be subject to the regulation’s bar on successive CUE allegations	The regulation bars subsequent CUE allegations not raised in the initial CUE motion; the due-process claim was available earlier and was untimely	Barred: Court held no special exemption for constitutional claims; the due-process CUE was untimely and properly barred under § 20.1409(c)
Whether CUE based on Mrs. Garcia’s 2004 testimony was timely presented in the initial CUE motion	The initial CUE motion’s reference to “correct facts were not before the Board in 2004 and 2006” encompassed the 2004 testimony allegation	The testimony-based CUE allegation was not raised in the 2008 motion and therefore barred as a later CUE challenge	Dismissed: Court affirmed that the Veterans Court’s factual finding — that the specific testimony-based CUE allegation was first raised later — is binding and not reviewable here; thus § 20.1409(c) bars it
Whether Cushman undermines Cook’s rule on finality and limits on collateral attacks	Cushman allegedly allows freer consideration of constitutional claims outside the CUE timing rules	Cook governs finality; Cushman did not address timeliness and does not overrule Cook	Rejected: Cushman did not displace Cook; constitutional claims are not categorically exempt from timeliness/channeling rules
Whether Federal Circuit may review Veterans Court factual finding about when a particular CUE allegation was presented	Plaintiff urged review to show timely presentation	Government maintained that factual determinations are non-reviewable by this court	Not reviewable: Court lacks jurisdiction to revisit non-constitutional factual determinations about what was raised in CUE filings

Key Cases Cited

Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2003) (finality of VA claim determinations; only new evidence or CUE permit collateral revision)
Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (each specific CUE assertion must be decided by the Board before Veterans Court jurisdiction)
Hillyard v. Shinseki, 695 F.3d 1257 (Fed. Cir. 2012) (§ 20.1409(c) permits only one CUE challenge to a Board decision on a given claim)
Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009) (recognizing that standalone constitutional due-process claims can be considered but not excusing timeliness requirements)
In re Bailey, 182 F.3d 860 (Fed. Cir. 1999) (discussion of "free-standing" constitutional claims within this court’s jurisdiction)