Cacciola v. Gibson, 27 Vet.App. 45 (July 22, 2014)
ABANDONED ISSUE AT CAVC, SUBSEQUENT CUE MOTION BELOW
Held: An issue that an appellant abandons on appeal to the Court can still be collaterally attacked later on the basis of clear and unmistakable error (CUE) because that abandoned issue was never “decided” by the Court.
Veteran appealed the issue of an earlier effective date in a 2006 Board decision to the Court. The Court remanded the matter in 2011, noting that it “deemed abandoned” the issue of an initial compensable rating because the appellant did not raise any arguments regarding that issue. In a 2012 decision, the Board dismissed the veteran’s CUE motion regarding the effective date in the 2006 decision, but adjudicated the merits of the CUE motion as to the issue of an initial compensable rating.
On appeal to the Court, the parties agreed that the law does “not preclude a claimant from seeking to reverse or revise on the basis of CUE a Board decision on an issue that was abandoned on appeal” since that issue was not decided by the Court. 27 Vet.App. at 50. The Court agreed with the parties, finding that, although a Notice of Appeal puts the entire Board decision on appeal, “an appellant’s abandonment of the right to a decision by the Court on a direct appeal of an issue in a Board decision does not otherwise preclude him from collaterally attacking the Board decision on that issue on the basis of CUE.” Id. at 58.
The appellant argued that the Board provided inadequate reasons or bases for its determination that the 2006 decision was not CUE. The Court determined that the appellant failed to show that the Board decision was CUE and thus affirmed the Board’s 2012 decision. Id. at 59-61.