from the United States Court of Appeals for Veterans Claims
in No. 15-3669, Chief Judge Robert N. Davis, Judge Coral Wong
Pietsch, Judge William S. Greenberg.
William L'Esperance, Albuquerque, NM, argued for
F. Hockey, Jr., Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent-appellee. Also represented by Robert Edward
Kirschman, Jr., Joseph H. Hunt; Brian D. Griffin, Jonathan
Krisch, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
O'Malley, Reyna, and Taranto, Circuit Judges.
Taranto, Circuit Judge.
Garcia, the late husband of appellant Pauline Garcia, was a
veteran of the United States Army. In 2002, he filed a claim
with the Department of Veterans Affairs for disability
benefits based on a mental disorder characterized by
paranoia, which he asserted was connected to his military
service. The Board of Veterans' Appeals denied his claim
in 2006. After initially appealing to the Court of Appeals
for Veterans Claims (Veterans Court), Mr. Garcia successfully
moved to dismiss the appeal, and the Board's decision
Garcia then collaterally challenged the 2006 Board decision
through a motion contending that the Board had committed
clear and unmistakable error (CUE) in that decision. The
Board denied Mr. Garcia's CUE motion in 2010. In filings
with the Board and the Veterans Court after the 2010 Board
decision, Mr. Garcia- succeeded by Mrs. Garcia when her
husband died-raised new allegations of CUE. The Veterans
Court ultimately determined that those new CUE allegations
made in the subsequent filings were barred by regulation.
Garcia v. Shulkin, 29 Vet. App. 47 (2017). Mrs.
Garcia appeals to this court. We reject Mrs. Garcia's two
challenges to that determination and therefore affirm.
Garcia served in the United States Army from 1952 to 1954.
The military's records of his medical treatment during
service were among those destroyed in a fire in 1973 at the
National Personnel Records Center in St. Louis, Missouri. The
record of his medical examination upon leaving the service
was not destroyed. That record reveals a normal psychiatric
state and, more generally, no severe illnesses or injuries.
Garcia first saw Dr. John Smoker, a private physician, in
1965 for a burn from a welding accident. In 1969, Dr. Smoker
diagnosed Mr. Garcia with, and prescribed medication for,
2002, Mr. Garcia submitted a claim for disability benefits to
the Albuquerque regional office of the Veterans Benefits
Administration of the U.S. Department of Veterans Affairs
(VA), alleging service connection of disability-causing
paranoid schizophrenia. The regional office denied the claim.
Mr. Garcia appealed to the Board of Veterans' Appeals,
which held a hearing in September 2004 at which both Mr.
Garcia and Mrs. Garcia gave testimony. In December 2004, the
Board remanded the case to the regional office for a VA
psychiatric examination, directing the examiner to
"provide a current diagnosis and indicate whether any
mental disorder currently shown is characterized by
paranoia" and to state "the medical probabilities
that it is attributable to the veteran's period of
military service." J.A. 130.
Appeals Management Center, processing the remand, requested a
psychiatric examination on January 4, 2005. A VA examiner,
Dr. Greene, conducted the examination on February 3, 2005.
Dr. Greene's report leaves unclear if she looked at Mr.
Garcia's claim file and medical records, but it shows
that she took a medical history from Mr. Garcia, who stated
that he saw a psychiatrist twice for paranoia while in the
service. Dr. Greene found that Mr. Garcia met the
"diagnostic criteria for the diagnosis of schizophrenia,
paranoid type, for which he has been treated for many years
and claims he was first seen for paranoia in the
service and that as likely as not this disorder started
in the service per the history given." J.A. 57
October 2005, the Appeals Management Center, upon receiving
and reading the examination report, returned Mr. Garcia's
file to Dr. Greene with a request that she "please state
in [her] report that [she has] reviewed the claims folder[;]
if not we run the risk of asking for a repeat examination
and/or addendum." J.A. 58 (capitalization omitted). The
Center also asked Dr. Greene to "provide a rationale for
[her] finding" that "as likely as not this disorder
started in the service per the history given." J.A. 59,
57. The Center noted that such a finding was not usually
associated with service records like those of Mr. Garcia,
which revealed that he had been promoted, had not lost time
for being absent without leave or confinement, had been
awarded the Good Conduct Medal, and had not been barred from
further service or enlistment after successfully completing
his full, two-year term of service. Id. at 59.
According to the Center, people with paranoid schizophrenia,
"in service, are often identified, wrongly, as
discipline problems" and their records often show grade
or rank reductions, frequent absence without leave,
confinement, early discharge, and a bar on re-enlistment.
Id. The Center advised that Dr. Greene consider the
supporting rationale for her finding that Mr. Garcia's
paranoid schizophrenia manifested itself during service in
1952-54 and stated that her rationale "must include
studies, facts, treatment and other evidence or information
that shows the progression of this disability over
later, Dr. Greene responded by adding a one-sentence addendum
to her initial report: "After review of the [claim]
file, [I] now feel it is impossible to say, without resorting
to mere speculation, as to whether this veteran's
schizophrenia, paranoid type actually started in Service,
without more documentation and records." J.A. 60. The
Center then issued a Supplemental Statement of the Case, in
which it "confirmed" the previous denial of service
connection for Mr. Garcia's condition. J.A. 127.
appeal to the Board once again, Mr. Garcia, through the
American Legion as his non-attorney representative, submitted
a brief arguing that Dr. Greene's medical report and
addendum did not take account of other record evidence that
supported his claim for benefits. The brief refers to and
quotes from the Appeals Management Center's October 2005
request to Dr. Greene, see J.A. 130-31; id.
at 131 (quoting J.A. 59), but it contains no challenge to
that request as improperly having led Dr. Greene to change
her conclusion. The Board denied Mr. Garcia's claim in
October 2006. Mr. Garcia-who was represented by counsel at
that time and has been ever since-appealed that decision to
the Veterans Court. But he soon moved to dismiss the appeal,
and the Veterans Court granted his motion.
August 2007, Mr. Garcia initiated a collateral challenge to
the Board's denial of his claim for disability benefits.
He sent the regional office a form alleging "[c]lear and
unmistakable error" in that the "[c]orrect facts
were not before the Board in 2004 and 2006." J.A. 71
(citing 38 C.F.R. §§ 3.105(a), 20.1403, 20.1404).
He "request[ed] [a] specific ruling on C.U.E.,"
J.A. 70, but the regional office determined that it did not
have jurisdiction to decide his CUE claim because
"[r]egional offices do not have the authority to
overturn a Board . . . decision in the absence of new and
material evidence," J.A. 67. Mr. Garcia then asked for
the matter to be sent to the Board.
29, 2008, Mr. Garcia submitted to the Board a more detailed
CUE motion challenging the Board's 2006 decision denying
his claim of service connection of his paranoid
schizophrenia. He argued, among other things, that the
record supported "several independent medical
conclusions" of service connection, that he was entitled
to more assistance from the VA in light of the loss of his
medical records in the 1973 fire, and that he was entitled to
the benefit of the doubt on the issue of service connection
"[g]iven the evidence available at the time, including
the testimony of [Mr. Garcia] and the reports of various
medical providers." J.A. 63-65. He did not argue that
the Appeals Management Center had improperly pressured Dr.
Greene to change her service-connection conclusion or that
his right to constitutional due process had been violated.
Nor did he point to or rely on the testimony that Mrs. Garcia
gave at the 2004 Board hearing.
Board denied the CUE motion in April 2010. It found, among
other things, that "there was no competent evidence, to
include lay testimony, establishing a continuity of
symptomatology since service." J.A. 76. In July 2010,
Mr. Garcia filed a motion to reconsider under 38 U.S.C.
§ 7103 and 38 C.F.R. §§ 20.1000, 20.1001,
challenging that finding. He stated that "counsel [in
earlier filings] may have not adequately notified the Board
of portions of the record which bear directly upon the C.U.E.
issue at bar," J.A. 18-specifically, Mrs. Garcia's
2004 Board testimony, which he claimed indicated the
existence of a paranoia disorder when the two began dating
soon after he returned from service. Acting under 38 C.F.R.
§§ 20.102(a) and 20.1001(c), the Board's Deputy
Vice Chairman denied the motion to reconsider, concluding
that, although Mrs. Garcia's testimony may have affected
the weighing of evidence, including contrary evidence, any
failure to consider her testimony did not constitute clear
and unmistakable error.
Garcia appealed the Board's denial of his CUE motion to
the Veterans Court. At that point, Mr. Garcia argued, for the
first time, that the Appeals Management Center had denied him
due process by "secretly litigat[ing] against" him
in "attack[ing]" Dr. Greene's initial finding
regarding service connection and "suggest[ing] what
findings a medical examiner should make." J.A. 93- 94.
But the Veterans Court determined that the allegation of a
due process violation had not been presented to the ...