Larson v. Shinseki, 744 F.3d 1317 (Mar. 10, 2014)
CLEAR & UNMISTAKABLE ERROR (CUE)
Appellant has only one opportunity to raise CUE arguments with each claim in a Board decision, but can raise new CUE arguments with an RO decision at any time.
Veteran was awarded benefits in 1969 and raised a CUE argument with that decision in 2007, asserting that the Board misapplied the diagnostic codes. The RO denied the CUE claim and the Board affirmed. The Board identified two CUE claims, both relating to the application of diagnostic codes. The Board concluded that the veteran had not shown that the law was misapplied or that the correct facts were not before the adjudicator. On appeal to the CAVC, the veteran filed a motion to modify the Board’s decision by removing the reference to a factual argument, which he had not raised at the Board or the RO. The CAVC dismissed the motion as moot, stating that he had exhausted his opportunity to raise further CUE arguments, and affirmed the Board’s decision.
The Federal Circuit reversed, finding that the CAVC erred in dismissing Mr. Larson’s motion. The Federal Circuit noted that the CAVC based its determination on the 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.” Larsen, 744 F.3d at 1318. However, Hillyard only dealt with 38 C.F.R. § 20.1409(c), which relates to the number of CUE arguments that can be raised with a Board decision. A different regulation, 38 C.F.R. § 3.105(a), allows a veteran to raise new CUE arguments with an RO decision at any time. The Federal Circuit held that because Mr. Larsen only challenged the legal basis for the RO’s decision, he was free to raise a “correct facts” argument in the future at the RO. Therefore, the motion to modify the Board decision with regards to its “correct facts” language was not moot – as that language could preclude Mr. Larsen from raising a “correct facts” argument at the RO in the future. The Federal Circuit did not disturb the portion of the CAVC’s decision that affirmed the two legal CUE claims.