NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

BOBBY R. GEORGE,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________

2018-1736

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-1221, Judge Mary J. Schoelen, 

Judge William S. Greenberg, Judge Michael P. Allen.

______________________

Decided: August 26, 2019

______________________

KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for claimant-appellant. 

 ERIC PETER BRUSKIN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by JOSEPH H. HUNT, MARTIN F. HOCKEY, JR.,

ROBERT EDWARD KIRSCHMAN, JR.; MARTIE ADELMAN, Y.
2 GEORGE v. WILKIE

KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

 ______________________

Before REYNA, CHEN, and HUGHES, Circuit Judges.

REYNA, Circuit Judge.

Claimant-Appellant Bobby George appeals from a decision of the Court of Appeals for Veterans Claims affirming a determination by the Board of Veterans’ Appeals that 

it did not commit clear and unmistakable error in a 2014 

decision concerning Mr. George’s claims for post-traumatic 

stress disorder. The Government makes several arguments on appeal, including that the Court of Appeals for 

Veterans Claims lacked jurisdiction because Mr. George’s 

clear and unmistakable error claim on appeal was distinct 

from the allegations he raised to the Board of Veterans’ Appeals. Because the Court of Appeals for Veterans Claims

did not consider whether it lacked jurisdiction, we vacate 

and remand. 

BACKGROUND

Mr. George served in the U.S. Army from August 1967 

to August 1969. His service included active duty in Vietnam. This case concerns Mr. George’s claim for service 

connection for post-traumatic stress disorder (“PTSD”).

Mr. George filed his original claim for service connection for PTSD on September 30, 1997. The Department of 

Veterans Affairs (“VA”) denied his claim on February 7, 

1998, for failure to identify a confirmed in-service stressor. 

He did not appeal that decision. 

In September 2003, Mr. George requested that the VA 

reopen his disallowed 1997 claim under 38 U.S.C. § 5108. 

The VA confirmed its previous denial of Mr. George’s claim. 

This time, Mr. George appealed to the Board of Veterans’ 

Appeals (“Board”), which remanded the claim for further 

development. The VA subsequently obtained additional 
GEORGE v. WILKIE 3

service records that confirmed Mr. George’s claimed in-service stressor. 

After examining Mr. George, the VA diagnosed him

with PTSD and granted him service connection in October 

2007. The VA assigned an effective date of September 19, 

2003—the date Mr. George requested that his claim be reopened. 

Mr. George filed a Notice of Disagreement with the assigned effective date and argued that 38 C.F.R. § 3.156(c)1

required reconsideration of the 1998 denial and assignment of an effective date relating back to his 1997 claim. 

The Board disagreed that § 3.156(c) applied and denied his 

claim for an earlier effective date. On appeal, the Court of 

Appeals for Veterans Claims (“Veterans Court”) remanded 

the claim, holding that the Board had erroneously determined that § 3.156(c) did not apply.

In February 2013, the Board further remanded the 

claim back to the regional office to obtain a retrospective 

medical opinion about the date of onset for Mr. George’s 

PTSD. The medical examiner who provided the retrospective opinion determined that the date of onset was October 

2003.

 

1 In relevant part, the regulation provides

(1) Notwithstanding any other section in this part, 

at any time after VA issues a decision on a claim, if 

VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims 

file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of 

this section. 

38 C.F.R. 3.156(c)(1) (emphasis added).
4 GEORGE v. WILKIE

In September 2014, the Board denied Mr. George’s 

claim for an earlier effective date based on the retrospective medical opinion. Mr. George did not appeal that decision, and it became final. 

In August 2015, Mr. George filed a motion with the 

Board to revise the 2014 decision based on clear and unmistakable error (“CUE”). He argued that the Board erred 

in its application of 38 C.F.R. § 3.156(c) by “(1) imposing an 

impermissible standard for consideration of the veteran’s 

lay evidence; (2) requiring that the medical evidence specify an onset date of PTSD; and (3) requiring that the exact 

onset of PTSD be determined ‘with specificity.’” J.A. 140–

41. The Board denied the motion based on its determination that it did not err in its application of § 3.156(c) in the 

2014 decision because Mr. George’s CUE allegations were 

unsupported by the record and were disputes about the 

weight given to evidence. 

Mr. George again appealed to the Veterans Court. He 

argued that the Board committed CUE in the 2014 decision 

by failing to properly reconsider his claim under § 3.156(c). 

The Veterans Court affirmed the Board’s finding of no CUE

in the 2014 decision. The Veterans Court concluded that 

the Board properly applied § 3.156(c) in reconsidering Mr. 

George’s original claim and that the Board’s finding of no 

CUE was not arbitrary and capricious. 

Mr. George timely appealed to this court. We have jurisdiction under 38 U.S.C. § 7292(a). 

DISCUSSION

This court has jurisdiction to review the Veterans 

Court’s interpretation of a regulation or statute “relied on 

by the Court in making the decision.” 38 U.S.C. § 7292(a).

We thus have jurisdiction to review the Veterans Court’s 

interpretation of its own jurisdictional statute, 38 U.S.C. 

§ 7252(a). Andre v. Principi, 301 F.3d 1354, 1358 (Fed. Cir. 

2002). Section 7252(a) provides that the Veterans Court
GEORGE v. WILKIE 5

“shall have exclusive jurisdiction to review decisions of the 

Board of Veterans’ Appeals.” “Review in the [Veterans]

Court shall be on the record of proceedings before the Secretary and the Board.” Id. § 7252(b). 

The Government argues that the Veterans Court 

lacked jurisdiction to consider the VA’s alleged failure to 

properly reconsider Mr. George’s claim under 38 C.F.R. 

§ 3.156(c) because the CUE claim that Mr. George raised to

the Veterans Court differed from his CUE allegations to 

the Board and was never the subject of a Board decision. 

As the Government points out, Mr. George argued in his

2015 motion to the Board that the “‘Board used the wrong 

legal standard when applying’ section 3.156(c) by: (1) imposing an impermissible standard for consideration of the 

veteran’s lay evidence; (2) requiring that the medical evidence specify an onset date of PTSD; and (3) requiring that 

the exact onset of PTSD be determined ‘with specificity.’” 

Appellee Br. 16 (quoting J.A. 140–41.) The Government 

contends that the specific CUE claim raised to the Veterans Court was different: Mr. George alleged that the 

Board’s CUE was in not properly reconsidering his claim 

under § 3.156(c), which would have required complete readjudication of his original 1997 PTSD claim. 

Mr. George counters that the Veterans Court did not 

lack jurisdiction because the issue of whether the VA was 

required to reconsider Mr. George’s 1997 claim is “inextricably intertwined” with whether the Board properly applied § 3.156(c) in the 2014 decision. Appellant Reply Br. 8. 

The question therefore is whether Mr. George’s arguments 

before the Veterans Court constitute a distinct CUE claim 

from the allegations that he made to the Board, such that 

the Veterans Court lacked jurisdiction to decide the newly 

raised CUE claim. 

In the case of Andre v. Principi, this court addressed 

the question of whether the Veterans Court has jurisdiction to consider CUE claims raised for the first time on 
6 GEORGE v. WILKIE

appeal. 301 F.3d at 1358–62. We held that the Veterans 

Court lacks jurisdiction in such circumstances. Id. Andre 

thus controls the determination of whether the Veterans 

Court had jurisdiction over Mr. George’s allegation of CUE 

made to the court.

Under Andre, “each ‘specific’ assertion of CUE constitutes a claim that must be the subject of a decision by the 

[Board] before the Veterans Court can exercise jurisdiction 

over it.” Id. at 1361. A CUE claim is a specific assertion of 

error, and one CUE claim does not encompass all potential

CUE allegations. Id. If, as the Government asserts, Mr. 

George’s arguments raised a distinct CUE claim for the 

first time on appeal to the Veterans Court, the court lacked 

jurisdiction to decide that newly raised CUE claim because 

it was not the subject of a Board decision. See id. at 1362. 

We further note that the Government did not previously challenge the Veterans Court’s jurisdiction, and the 

court did not address whether it had jurisdiction over Mr. 

George’s CUE claim under Andre. We conclude that the 

Veterans Court should make that determination in the 

first instance.2

CONCLUSION

For the first time on appeal to this court, the Government challenges whether the Veterans Court had jurisdiction over Mr. George’s allegation that the Board committed 

CUE by failing to properly reconsider his claim under 38 

C.F.R. § 3.156(c), requiring full readjudication by the VA. 

 

2 The Government also argues that if the Veterans 

Court had jurisdiction over Mr. George’s CUE claim, we 

would not have jurisdiction to review the Veterans Court’s 

CUE analysis under 38 U.S.C. § 7292(d)(2). See Willsey v. 

Peake, 535 F.3d 1368, 1372 (Fed. Cir. 2008). In view of our 

decision to vacate and remand, we do not address the Government’s other arguments for lack of jurisdiction.
GEORGE v. WILKIE 7

We vacate the decision of the Veterans Court and remand 

this case for the Veterans Court to consider in the first instance whether it has jurisdiction over Mr. George’s CUE 

allegation under 38 U.S.C. § 7252(a) and Andre. 

VACATED AND REMANDED

COSTS

No costs.