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Garcia v. Wilkie

United States Court of Appeals, Federal Circuit

November 5, 2018

PAULINE GARCIA, Claimant-Appellant

          Appeal 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 claimant-appellant.

          Martin 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.

          Before O'Malley, Reyna, and Taranto, Circuit Judges.

          Taranto, Circuit Judge.

         Teofila 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 became final.

         Mr. 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.



         Mr. 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.

         Mr. 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, paranoid schizophrenia.

         In 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.

         The 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 (emphases added).

         In 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 time." Id.

         A week 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.

         On 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.


         In 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.

         On July 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.[1] 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.

         The 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.

         Mr. 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 ...

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