United States Court of Appeals 

for the Federal Circuit ______________________ 

PAULINE GARCIA,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2018-1038

______________________ 

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. 

______________________ 

Decided: November 5, 2018 

______________________ 

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. 
2 GARCIA v. WILKIE

 ______________________ 

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.

I 

A 

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
GARCIA v. WILKIE 3

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 disabilitycausing 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). 
4 GARCIA v. WILKIE

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, twoyear 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 onesentence 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.
GARCIA v. WILKIE 5

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. 

B 

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 
6 GARCIA v. WILKIE

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 

 

1 Neither party here suggests that the legal issues 

presented to us call for distinguishing Mr. Garcia’s 2008 

filing with the Board from his 2007 filing originally made 

with the regional office. For simplicity, we refer to the 

2008 filing as encompassing both.
GARCIA v. WILKIE 7

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 Board, so it dismissed Mr. Garcia’s appeal, for want of 

jurisdiction, insofar as it made this allegation. 

Mr. Garcia also argued to the Veterans Court that the 

Board committed clear and unmistakable error by not 

adequately considering Mrs. Garcia’s 2004 testimony. 

The Secretary argued that Mr. Garcia had not properly 

presented to the Board this allegation of clear and unmistakable error. But the Veterans Court, citing Mr. Garcia’s 

motion to reconsider, “set aside” the 2010 Board decision 

and remanded the case to the Board for full consideration 

of the allegation in the first instance. J.A. 34.

On remand, the Board in October 2012 ruled against 

the allegation—now made by Mrs. Garcia (substituted for 

Mr. Garcia, who had passed away)—of clear and unmistakable error based on the asserted failure to consider 

Mrs. Garcia’s 2004 testimony. In early 2013, Mrs. Garcia 

submitted a motion to reconsider the 2012 Board decision. 

She contended that the 2006 Board decision as to service 

connection would have been manifestly different if the 

Board had considered her 2004 testimony. In mid-2013, 

the Deputy Vice Chairman denied the motion for reconsideration.

The early-2013 filing that includes the motion to reconsider also includes a motion to vacate the 2012 Board 
8 GARCIA v. WILKIE

decision. In that motion, Mrs. Garcia contended that the 

2012 decision failed to address what she asserted was the 

“obvious denial” of due process when, in 2005, the Appeals 

Management Center returned Dr. Greene’s examination 

report for further consideration, leading to a different 

opinion by Dr. Greene. J.A. 37. In mid-2013, the Board 

denied the motion to vacate, treating it as governed by 38 

C.F.R. § 20.904 (“Vacating a decision”). 

Mrs. Garcia appealed the Board’s October 2012 decision to the Veterans Court. She again argued that the 

Appeals Management Center’s actions regarding Dr. 

Greene violated her late husband’s right to due process

and that the Board’s failure to consider her testimony was 

clear and unmistakable error. The Veterans Court again 

found that the allegation of a due process violation had 

not been properly presented to the Board. And it again 

remanded the matter of Mrs. Garcia’s testimony for 

further consideration. 

In that remand, the Board again ruled against the allegation of clear and unmistakable error based on Mrs. 

Garcia’s 2004 testimony. Mrs. Garcia appealed that 

decision to the Veterans Court. She again pressed both 

the due process and 2004 testimony allegations of clear 

and unmistakable error. 

The Veterans Court found that neither allegation had 

been presented to the Board in Mr. Garcia’s CUE motion 

or before the Board issued its decision on that CUE motion in 2010. Garcia, 29 Vet. App. at 54. On that basis, 

the Veterans Court ruled that a governing regulation, 38 

C.F.R. § 20.1409(c), as construed in governing precedent, 

“requires that all possible errors in a final Board decision 

be raised at the time a motion for revision of that Board 

decision based on CUE is filed,” barring “later CUE 

challenges to [that] Board decision.” Garcia, 29 Vet. App. 

at 54. For that reason, the Veterans Court concluded that 

the Board lacked jurisdiction to entertain either allega-
GARCIA v. WILKIE 9

tion and that the Veterans Court itself therefore lacked 

jurisdiction, and it dismissed the appeal with prejudice. 

Id. at 53, 56.

Mrs. Garcia timely appealed to this court. We have 

jurisdiction pursuant to 38 U.S.C. § 7292.

II

This court has jurisdiction to review the Veterans 

Court’s legal determinations, 38 U.S.C. § 7292(d)(1), and 

to review and decide any challenge to the validity or 

interpretation of a statute or regulation “to the extent 

presented and necessary to a decision,” id. § 7292(c). But

this court does not have jurisdiction to review the Veterans Court’s factual determinations, or its application of 

law to the facts of a particular case, “[e]xcept to the extent 

that an appeal under this chapter presents a constitutional issue.” Id. § 7292(d)(2). 

A 

As this court explained in an en banc decision years 

ago, Congress has provided for two mechanisms for a 

claimant like Mr. Garcia to seek to revise a Board denial 

of a claim for disability benefits after the denial has 

become final. See Cook v. Principi, 318 F.3d 1334, 1337 

(Fed. Cir. 2003) (en banc). One is through showing new 

and material evidence. 38 U.S.C. § 5108; see 38 C.F.R. 

§ 3.156(a). The second is through showing clear and 

unmistakable error. 38 U.S.C. § 7111; see

38 C.F.R. § 20.1400. This case involves the latter form of 

collateral attack—a request for revision of a Board decision based on clear and unmistakable error under § 7111, 

which provides, in pertinent part:

(a) A decision by the Board is subject to revision 

on the grounds of clear and unmistakable error. If evidence establishes the error, the prior 

decision shall be reversed or revised. . . . 
10 GARCIA v. WILKIE

(e) Such a request shall be submitted directly to 

the Board and shall be decided by the Board on 

the merits . . . . 

The regulations pertaining to CUE motions to the 

Board, contained in 38 C.F.R. subpart O, §§ 20.1400–

1411, set forth several requirements that are relevant 

here. First: The substantive standard for relief is high. 

“Clear and unmistakable error is a very specific and rare 

kind of error. It is the kind of error, of fact or of law, that 

when called to the attention of later reviewers compels 

the conclusion, to which reasonable minds could not 

differ, that the result would have been manifestly different but for the error.” 38 C.F.R. § 20.1403(a); see also id.

§ 20.1403(c) (“To warrant revision of a Board decision on 

the grounds of clear and unmistakable error, there must 

have been an error in the Board’s adjudication of the 

appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not 

absolutely clear that a different result would have ensued, 

the error complained of cannot be clear and unmistakable.” (emphasis added)). 

Second: The pleading requirements for a CUE motion

are demanding: 

Specific allegations required. The motion must 

set forth clearly and specifically the alleged clear 

and unmistakable error, or errors, of fact or law in 

the Board decision, the legal or factual basis for 

such allegations, and why the result would have 

been manifestly different but for the alleged error. 

Non-specific allegations of failure to follow regulations or failure to give due process, or any other 

general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with 

the requirements set forth in this paragraph shall 
GARCIA v. WILKIE 11

be dismissed without prejudice to refiling under 

this subpart.

Id. § 20.1404(b). Pursuant to that regulation, this court 

has ruled that “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.” Andre v. Principi, 301 F.3d 1354, 1361 (Fed. 

Cir. 2002); see 38 U.S.C. §§ 7252, 7261. CUE motions, 

unlike filings in direct appeals, are not liberally construed; instead, the regulations governing CUE motions 

“place the onus of specifically raising each issue on the 

claimant.” Robinson v. Shinseki, 557 F.3d 1355, 1360

(Fed. Cir. 2009) (citing § 20.1404(b)); see also Andrews v. 

Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (requirement to liberally construe pleadings does not apply to 

CUE motions filed by counsel).

Third: Under 38 C.F.R. § 20.1409, a regulation adopted pursuant to 38 U.S.C. § 501(a) and generally upheld in 

Disabled American Veterans v. Gober, 234 F.3d 682, 702 

(Fed. Cir. 2000), a claimant may not freely file multiple 

CUE challenges to the same Board decision regarding a 

particular claim for benefits. Section 20.1409(a) first 

identifies what a “final” decision on a CUE motion is: “A 

[Board] decision on a motion filed by a party or initiated 

by the Board pursuant to [subpart O, 38 C.F.R. 

§§ 20.1400–1411, governing CUE challenges to Board

decisions] will be stamped with the date of mailing on the 

face of the decision, and is final on such date.” 38 C.F.R. 

§ 20.1409(a); see also id. § 20.1409(b) (certain dismissals 

without prejudice and referrals of CUE motions to a 

regional office are not “final decision[s] of the Board” 

under § 20.1409). Section 20.1409(c) then states an antimultiplicity rule: 

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 
12 GARCIA v. WILKIE

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.

This court has approved the Secretary’s reading of 

§ 20.1409(c), a rule adopted in 1998, to “permit[] only one 

CUE challenge to a Board decision on any given disability 

claim.” Hillyard v. Shinseki, 695 F.3d 1257, 1260 (Fed. 

Cir. 2012) (deferring to agency explanation of § 20.1409(c)

in Proposed Rules, 63 Fed. Reg. 27,534, 27,538 (Dep’t of 

Veterans Affairs May 19, 1998), as a reasonable interpretation, and holding that the regulation barred the claimant from filing a second CUE motion after the Board’s 

decision on the claimant’s first CUE motion became final, 

even though the allegations of error differed). 

B 

On appeal, Mrs. Garcia argues that the Veterans 

Court erred in holding that the Board was barred by 

regulation from considering the allegations of clear and 

unmistakable error now at issue (concerning constitutional due process and Mrs. Garcia’s 2004 testimony) because 

she (more precisely, her late husband) did not present 

those CUE allegations to the Board in the 2008 CUE 

motion itself or at any time before the Board’s 2010 

decision on that motion. We address only the two focused 

challenges to the Veterans Court’s ruling that Mrs. Garcia 

presents here. We reject those challenges.

We note that Mrs. Garcia does not present any challenge within this court’s jurisdiction under 38 U.S.C. 

§ 7292(c) or (d)(1) to the Veterans Court’s interpretation 

of § 20.1409(c) as reaching beyond the situation of a 

separate, new CUE motion filed after a Board decision on 

a first CUE motion attacking the same claim determination. That was the situation in Hillyard—where, in fact,

the second CUE motion was filed after the Board’s decision on the first CUE motion became final in the strong 
GARCIA v. WILKIE 13

sense that available appellate direct review of the decision 

was complete. 695 F.3d at 1258 (explaining that, after 

the Board denied the first CUE motion and the Veterans 

Court affirmed, the Board could not later entertain a 

second CUE motion attacking the same disability determination by the Board).2 Hillyard thus had no occasion to 

interpret the regulation’s application to other situations. 

Indeed, the court in Hillyard was addressing a different 

question, stating that the appeal presented “a solitary 

legal question: what the term ‘issue’ means in 38 C.F.R. 

§ 20.1409(c).” Id.

Mrs. Garcia does not challenge the interpretation of 

§ 20.1409(c) as reaching various situations where just one 

formal CUE motion is filed. One such situation involves 

CUE allegations that are presented in the continuing 

proceedings on the initial motion itself, but only after the 

motion was filed. Garcia, 29 Vet. App. at 54. As an 

example of that situation, the new allegations might be 

presented in the proceedings on the initial CUE motion 

after the Board issues a “final” decision on the initial 

motion under § 20.1409(a) and after that decision is later 

set aside on appeal and the matter remanded. Any questions about, for example, the availability of amendments 

to a CUE motion during the Board’s consideration, or on 

 

2 See Claimant-Appellant’s Br., Hillyard v. 

Shinseki, No. 2011-7157, 2011 WL 5561120, at *2–3 (Fed. 

Cir. Oct. 20, 2011) (stating that Mr. Hillyard filed a first 

CUE motion in 2001, the Board denied that motion, the 

Veterans Court affirmed the Board’s denial in 2003, Mr. 

Hillyard filed an appeal to the Federal Circuit that he 

then withdrew, and Mr. Hillyard filed his second CUE 

motion several years later, in 2006). 
14 GARCIA v. WILKIE

remand after the Board’s decision is set aside, are not 

before us.3 

1 

Regarding the alleged due process violation, we limit 

our ruling to the situation presented here: undisputed

facts demonstrate that the allegation could have been, but 

was not, presented in the 2008 CUE motion. The parties 

agree, and the record clearly shows, that Dr. Greene’s 

initial examination report, the Appeals Management 

Center’s follow-up request, and Dr. Greene’s addendum 

were provided or were available to Mr. Garcia in 2006, at 

the time he submitted his brief to the Board in support of 

his claim for benefits. Oral Arg. at 5:40–6:00; id. at

11:42–12:00; see J.A. 130–32 (2006 brief on behalf of Mr. 

Garcia stating that Dr. Greene’s report and addendum 

are part of the claim file and quoting from the Center’s 

follow-up request). The parties also do not dispute that 

Mr. Garcia first alleged the constitutional due process

violation in 2011 in his appeal to the Veterans Court of 

the Board’s 2010 decision denying his CUE motion. See

Garcia Br. 2; VA Br. 8; J.A. 9–10 (Veterans Court noting 

that the parties did not dispute this point); see also

J.A. 93 (Mr. Garcia’s 2011 brief to Veterans Court). In 

these circumstances, the Veterans Court properly found 

that Mr. Garcia did not raise a due process challenge in 

his initial CUE motion or, indeed, until after the Board 

ruled on that motion. 

 

3 Mrs. Garcia also does not challenge the Veterans 

Court’s ruling that it lacked jurisdiction to review the 

denials of the motions to reconsider and the motion to 

vacate. Garcia, 29 Vet. App. at 56 (relying on Mayer v. 

Brown, 37 F.3d 618, 619 (Fed. Cir. 1994) (discussing 

motions to reconsider), and Harms v. Nicholson, 20 Vet. 

App. 238, 243 (2006) (discussing motions to vacate)).
GARCIA v. WILKIE 15

The Veterans Court drew the conclusion that the allegation of a due process violation was no longer permitted 

at the time Mr. Garcia presented it. According to the 

Veterans Court, that conclusion follows from 38 C.F.R. 

§ 20.1409(c)’s bar on presenting a CUE challenge regarding a claim for benefits where that challenge was omitted 

from an earlier-filed CUE motion regarding the same 

claim for benefits. Garcia, 29 Vet. App. at 54. 

Mrs. Garcia makes only one argument against the 

Veterans Court’s conclusion as to the due process allegation. She contends that a constitutional challenge is 

special and simply is not subject to the rule against 

successive allegations of CUE in the same underlying 

Board decision. We see no sound basis for adopting the 

suggested exception. 

In Cook, the en banc court held that the principles of 

finality and res judicata generally apply to a claim determination by the VA. 318 F.3d at 1336–37; see Astoria 

Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107 

(1991) (“We have long favored application of the commonlaw doctrines of collateral estoppel (as to issues) and res 

judicata (as to claims) to those determinations of administrative bodies that have attained finality.”). Congress 

may create exceptions to the finality of a claim determination, as it did for Board determinations upon a showing of

(1) new and material evidence, 38 U.S.C. § 5108, or 

(2) CUE, id. §§ 5109A, 7111. But the court explained in 

Cook that there is no “third exception” even for “grave 

procedural error.” 318 F.3d at 1337, 1340–41, 1341 n.9.4 

 

4 The final VA claim determination at issue in Cook

was that of a regional office, because the claimant in that 

case did not appeal the regional office’s determination. 

318 F.3d at 1335–36. But the reasoning in Cook applies 

equally to a final determination of the Board. See id. at 
16 GARCIA v. WILKIE

Adopting Mrs. Garcia’s proposal to exempt procedural 

constitutional challenges from all CUE constraints, even 

those concerning timing, would run counter to Cook’s 

rulings. Mrs. Garcia has not established any inherent 

limitation on “finality” applicable here or the availability 

of a procedural vehicle other than a CUE motion as a 

basis for her assertion. (She does not argue new and 

material evidence.) And we need not explore the broad 

question whether, after Cook, there could be a constitutional basis for allowing presentation of some due process 

allegations to revise otherwise-final VA decisions without 

proceeding by way of a CUE motion or a motion based on 

new and material evidence. Even if there could be, which 

we need not say, there is no such basis in this case for 

overriding the CUE regulation on timely presentation of 

challenges. The particular due process challenge at issue 

here was readily available to Mr. Garcia at the time of the 

2008 CUE challenge. We see no constitutional difficulty 

in the regulation’s channeling of an available CUE challenge on this basis to the initial CUE motion, with CUE 

relief on this basis not thereafter available. See United 

States v. Mezzanatto, 513 U.S. 196, 200–01 (1995) (constitutional arguments may be waived); Singleton v. 

Shinseki, 659 F.3d 1332, 1334 n.2 (Fed. Cir. 2011) (same).

Mrs. Garcia contends that this court’s decision in 

Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009),

issued several years after Cook, suggests that Cook is no 

longer good law. The court in Cushman reviewed a collateral challenge to a VA claim determination and concluded 

 

1337 (noting the same two statutory exceptions apply to 

the finality of decisions by the Secretary and by the 

Board); id. at 1339 (explaining the purpose of the rule of 

finality and Congress’s understanding of that rule in 

enacting the statutes codifying CUE challenges to both 

Secretary and Board determinations).
GARCIA v. WILKIE 17

that the presentation of an improperly altered medical 

record in the original agency proceeding violated the 

veteran’s constitutional right to due process. Id. at 1291. 

In assessing that claim, the court stated that it “ha[d] 

jurisdiction and authority to consider a free-standing 

constitutional issue independently from the CUE framework typically applicable to appellate review of veterans’ 

claims.” Id. at 1296 (citing In re Bailey, 182 F.3d 860, 

869–70 (Fed. Cir. 1999)).

We do not read that statement to mean what Mrs. 

Garcia urges—that a constitutional challenge is generally 

free of the regulatory timely-presentation limits that 

channel CUE challenges as an exception to finality principles. Most specifically, the statement does not address 

timely-presentation limits. That is not surprising: there 

was no timeliness issue in Cushman. The court observed 

that “[i]t [was] not disputed that [Mr. Cushman’s] freestanding due process claim was timely raised.” Id. at 

1298 n.2; see also id. at 1294 (noting statement by government counsel in earlier proceeding that “Mr. Cushman 

would be free to raise those claims [including the due 

process claim] before the Board”).

Beyond that, nothing in Cushman addresses or seeks 

to distinguish (much less purports to modify) Cook’s en 

banc ruling as to the limited avenues for collateral attacks 

on otherwise-final VA claim determinations. There was 

no issue about Mr. Cushman having proceeded outside 

the authorized avenues: Mr. Cushman raised his due 

process contention within a CUE challenge that the 

government accepted as proper. Id. at 1294. The court’s

citation to In re Bailey for the reference to a “freestanding constitutional issue” merely pointed to Bailey’s 

characterization of such an issue as “one not also involving a challenge to the interpretation or validity of a statute or regulation” but that “otherwise meets the 

limitations of the jurisdictional statute [38 U.S.C. 

§ 7292].” Bailey, 182 F.3d at 869–70. The court later 
18 GARCIA v. WILKIE

noted Mr. Cushman’s argument “that the burdens of proof 

applicable to CUE claims do not apply to his free-standing 

due process claim” and “agree[d] that the burdens of proof 

typically applicable to due process claims also apply to 

such claims raised in the context of veteran’s benefits.” 

Cushman, 576 F.3d at 1299 n.3. But that statement 

requires no more than applying the normal constitutional 

“burdens of proof” for disturbing the results of an adjudication based on due process defects, even when the issue

is raised within a CUE challenge. It does not question the 

rules that channel such collateral challenges within 

defined limits where, as here, there is no separate due 

process problem with adhering to those limits.

For those reasons, we reject Mrs. Garcia’s challenge to 

the Veterans Court’s application of 38 C.F.R. § 20.1409(c)

to bar her due process allegation of CUE.5 

2

As for the CUE allegation based on Mrs. Garcia’s 2004 

testimony, Mrs. Garcia makes just one argument: that 

this allegation was actually presented in the initial CUE 

motion. She relies on that motion’s statement that the 

“[c]orrect facts were not before the Board in 2004 and 

2006.” J.A. 71. 

 

5 The government argues that Andre, 301 F.3d 

1354, separately deprived the Veterans Court of jurisdiction over Mrs. Garcia’s due process claim. We do not 

reach that argument. The Veterans Court decision before

us does not rely on Andre, and we affirm based on the 

§ 20.1409(c) ground on which the Veterans Court relied. 

We note that, as this court explained in Hillyard, the 

Andre case did not involve § 20.1409(c) or a CUE challenge to a Board decision, but instead involved a CUE 

challenge to a regional office decision, to which 

§ 20.1409(c) does not apply. Hillyard, 695 F.3d at 1260.
GARCIA v. WILKIE 19

This argument, however, is a challenge to the Veterans Court’s factual determination that the particular

allegation of CUE—this one not a constitutional challenge—was omitted from the initial CUE motion, having 

been presented only in July 2010 on a motion to reconsider the Board’s April 2010 denial of the motion. Garcia, 29 

Vet. App. at 54. We do not have jurisdiction to review 

that factual determination regarding a non-constitutional 

issue. See 38 U.S.C. § 7292(d)(2)(A); Comer v. Peake, 552 

F.3d 1362, 1372 (Fed. Cir. 2009) (“Whether a veteran has 

raised a particular [CUE challenge] is a factual determination, outside the purview of our appellate authority.”); 

see also Kernea v. Shinseki, 724 F.3d 1374, 1382 (Fed. Cir. 

2013) (no jurisdiction to consider whether claimant raised 

a valid CUE challenge because that “would require us to 

review and interpret the contents of her [CUE motion]”). 

We have before us no challenge to the application of 

§ 20.1409(c) to bar the allegation regarding Mrs. Garcia’s

2004 testimony if we accept, as we must, the Board’s 

factual findings about when that allegation was first 

presented. 

III

We therefore affirm the Veterans Court’s decision. 

AFFIRMED

Costs

No costs.