Thomas F. Cacciola v. Sloan D. Gibson
2014 U.S. Vet. App. LEXIS 1255
| Vet. App. | 2014Background
- Thomas F. Cacciola appeals a March 29, 2012 BVA decision dismissing his CUE motions filed after the 2006 Board decision denying an earlier effective date for bilateral hearing loss and denying a compensable rating.
- The 2006 decision granted an earlier effective date of August 6, 1998 for service connection but continued a noncompensable rating; the rating issue dealt with February 1998, August 2000, and October 2004 audiology results.
- The Court previously affirmed the 2006 decision in a June 2011 memorandum decision, deeming the compensable-rating issue abandoned for lack of argument in the direct appeal.
- The March 2012 Board decision squarely addressed whether CUE existed for the effective-date issue (dismissed due to Court affirmation) and the compensable-rating issue (reviewed on the merits as an abandoned issue).
- The central legal question was whether an NOA places all issues in a single Board decision on appeal and whether abandoned issues may nonetheless be reviewed via CUE in a collateral attack.
- The Court ultimately held that an NOA places the entire Board decision on appeal, abandonment does not preclude CUE review of the abandoned issue, and the Board’s 2012 decision affirming no CUE on the rating issue and dismissing CUE on the effective date was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does an NOA place all issues in a Board decision on appeal? | Cacciola argued NOA covers the entire issued decision. | Secretary argued issues appealed/decided by court are insulated from CUE revision. | YES; NOA covers the entire Board decision on appeal. |
| Can an abandoned issue on direct appeal be reviewed for CUE? | Abandoned issue remains reviewable for CUE collateral attack. | Abandoned issues are not reviewable on direct appeal and should not be revisited via CUE if decided by the Court. | YES; abandonment does not bar CUE review of that issue. |
| Whether the Board properly dismissed CUE as to the effective-date issue after the Court's prior affirmation? | Court decision on effective date was not final for CUE purposes due to collateral attack rights. | Court affirmed the effective-date issue; §20.1400(b) bars further CUE review of that issue. | affirmed; no CUE review available for the effective-date issue. |
| Whether the Board correctly found no CUE in the 2006 rating decision after considering the abandoned issue? | 2012 Board misweighed or failed to consider certain evidence (e.g., 1985 audiometry) to show CUE. | The 2012 analysis reasonably concluded no CUE; the evidence did not manifestly change the outcome. | No CUE; rating decision upheld. |
Key Cases Cited
- DAV v. Gober, 234 F.3d 682 (Fed. Cir. 2000) (CUE review extends to Board decisions; §20.1400(b) aligns with 7111)
- Winsett v. Principi, 341 F.3d 1329 (Fed. Cir. 2003) (interprets §20.1400(b) as preventing revisiting prior Board decisions on decided issues)
- In re Hillyard I, 24 Vet.App. 343 (2011) (distinguishes between issues, claims, and theories for CUE analysis)
- Hillyard v. Shinseki, 695 F.3d 1257 (Fed. Cir. 2012) (confirms the DAV interpretation of 'issue' and downstream elements)
- May v. Shinseki, 544 Fed.Appx. 1002 (Fed. Cir. 2013) (appellate review scope regarding Board decisions and issues)
- Damrel v. Brown, 6 Vet.App. 242 (1994) (CUE test requires correct facts or law and manifests to change outcome)
- Russell v. Principi, 3 Vet.App. 310 (1992) (CUE test includes 'manifestly changed the outcome' standard)
- Eddy v. Brown, 9 Vet.App. 52 (1996) (standard for review of Board decisions under 38 U.S.C. § 7261)