Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-1733, Judge Lawrence B. Hagel.
The opinion of the court was delivered by: Moore, Circuit Judge.
Before LINN, MOORE, and O'MALLEY, Circuit Judges.
Mr. Hillyard appeals from a decision of the Court of Appeals for Veterans Claims (Veterans Court) affirming the Board of Veterans Appeals' (Board's) dismissal of Mr. Hillyard's second request for revision as barred by 38 C.F.R. § 20.1409(c). For the reasons set forth below, we affirm.
Mr. Hillyard served in the United States Army. While in service, he suffered a head injury and was hospitalized for two weeks. After leaving the service, Mr. Hillyard filed a single claim for service connection for a mental condition, which he attributed to his in-service head injury. The Veterans Administration (VA) denied his claim and the Board affirmed. Mr. Hillyard filed a request for revision alleging clear and unmistakable error (CUE) by the Board in failing to grant service connection for an adjustment disorder or for a decline in cognitive ability due to a head injury. The Board denied Mr. Hillyard's request for revision and the Veterans Court affirmed. Mr. Hillyard later filed a second request for revision alleging CUE by the Board in failing to consider and apply 38 U.S.C. §§ 105(a) and 1111, a different CUE allegation from the one he made in his first request. The Board dismissed Mr. Hillyard's second request for revision with prejudice, concluding 38 C.F.R. § 20.1409(c) permitted only one request for revision to be filed. The Veterans Court affirmed. Mr. Hillyard appeals, arguing that § 20.1409(c) permits multiple CUE challenges as long as each challenge is based on a different CUE theory. We have jurisdiction under 38 U.S.C. § 7292.
Our jurisdiction to review decisions of the Veterans Court is limited by statute. Guillory v. Shinseki, 603 F.3d 981, 986 (Fed. Cir. 2010). We have jurisdiction over "all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1). We lack jurisdiction over any "challenge to a factual determination" or "challenge to a law or regulation as applied to the facts of a particular case" absent a constitutional issue. 38 U.S.C. § 7292(d)(2). We set aside a Veterans Court decision only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." 38 U.S.C. § 7292(d)(1)(A).
This case presents a solitary legal question: what the term "issue" means in 38 C.F.R. § 20.1409(c). The Veterans Court concluded, based in significant part on our decision in Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000), that "issue" is synonymous with "claim." Hillyard v. Shinseki, 24 Vet. App. 343, 353 (2011). The Veterans Court held that § 20.1409 limits a veteran to one request for revision, or CUE challenge, for each disability claim finally decided by the Board, although that one CUE challenge may contain numerous arguments or theories. Id. at 353-54. Mr. Hillyard contends that "issue" in § 20.1409 corresponds to "theory" or specific CUE allegation, which means a veteran may file multiple CUE challenges to a disability claim finally decided by the Board as long as each challenge is based on a different theory.
Revision of Board decisions based on CUE is authorized by 38 U.S.C. § 7111. See Disabled Am. Veterans, 234 F.3d at 686-87. To implement § 7111, the VA promulgated regulations including 38 C.F.R. §§ 20.1401 and 20.1409 (Rules 1401 and 1409). Id. at 687-88. Rule 1409(c) states:
Once there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error. Subsequent motions relating to that prior Board decision on that issue shall be dismissed with prejudice.
38 C.F.R. § 1409(c) (emphasis added). Rule 1401(a) defines "issue":
Unless otherwise specified, the term "issue" in this subpart means a matter upon which the Board made a final decision (other than a decision under this subpart). . . .
38 C.F.R. § 1401(a). In its notice of rulemaking, the VA explained the operation of then proposed Rule 1409:
Proposed Rule 1409 . . . would provide that, once there is a final decision on a motion under the proposed subpart . . . the prior Board decision on that issue would no longer be subject to revision on the grounds of CUE and that subsequent motions on such decisions would be dismissed with prejudice. For example, if a party challenged a decision on service connection for failing to apply the proper diagnostic code in the Schedule for Rating Disabilities, 38 CFR part 4, and the Board denied the motion, a subsequent motion which alleged that the Board failed to apply the presumption of sound condition at the time of entry into service, 38 U.S.C. 1111, would be dismissed ...