Hillyard v. Dept. Of Veterans Affairs
2012 U.S. App. LEXIS 17373
Fed. Cir.2012Background
- Mr. Hillyard, a U.S. Army veteran, suffered a head injury in service and was hospitalized two weeks.
- He filed a single service-connection claim for a mental condition attributed to the head injury, which the VA denied and the Board affirmed.
- He then filed a first revision alleging CUE by the Board for not granting service connection for an adjustment disorder or cognitive decline; the Board denied, and the Veterans Court affirmed.
- Subsequently, he filed a second revision alleging a different CUE theory based on 38 U.S.C. §§ 105(a) and 1111; the Board dismissed this second motion with prejudice under Rule 20.1409(c).
- The Veterans Court affirmed the Board’s dismissal; Hillyard appeals arguing that § 20.1409(c) allows multiple CUE challenges if each rests on a different theory.
- The core question is how to interpret the term “issue” in § 20.1409(c), and whether the VA’s interpretation that it permits only one CUE challenge per disability claim should be deferred to.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “issue” in 38 C.F.R. § 20.1409(c). | Hillyard contends “issue” equals a distinct CUE theory, allowing multiple revisions. | VA interprets “issue” as the final Board decision on a given disability claim, permitting only one CUE challenge per claim. | Defers to VA interpretation; holds only one CUE challenge per disability claim. |
Key Cases Cited
- Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000) (informs the interpretation and limitations of CUE challenges under Rule 1409/Rule 1401)
- Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (RO-based CUE challenges; not controlling for Board decisions under §7111)
- Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005) (CUE challenges to RO decisions addressed; Board decisions governed by different rules)
- Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (liberal pleading standards; no CUE claim at issue in that decision)
- Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000) (establishes framework for interpretation of CUE and Rule 1409)
- Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352 (Fed. Cir. 2005) (agency interpretations of its regulations are given deference)