# United States **Court of Appeals**  **for the Federal Circuit**

______________________

PAULINE GARCIA,

Claimant

- Appellant

v.

ROBERT WILKIE , SECRETARY OF VETER ANS 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

______________________

W ILLIAM L'E SPERANCE , Albuquerque, NM, argued for claimant

- appellant.

M ARTIN F. H OCKEY , J R

. , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent

- appellee. Also represented by R OBERT E DWARD K IRSCHMAN , J R ., J OSEPH H. H UNT ; B RIAN D. G RIFFIN , J ONATHAN K RISCH , Office of General Counsel, United States Department of Veterans Affairs , Washington, DC.G ARCIA v. WILKIE 2

______________________

Before O’M ALLEY , R EYNA , and T ARANTO , Circuit Judges.

T ARANTO , 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 Ve terans Affairs for disability benefits based on a mental disorder characterized by paranoia , which he asserted was co nnected to his military service . The Board of Veterans’ Appeals denied his claim in 2006

. After initially appea ling to the Court of Appea ls for Veterans Claims (Veterans Court) , Mr. Garcia successfull y moved to dismiss the appeal, and the Board’s decision became final.

Mr. Garcia then collateral ly challenged the 2006 Board decision through a motion contending that the Board had committed clear and unmistakable error (CUE) in th at decision . T he Board denied Mr. Garcia’s CUE motion in 2010

. In filings with the Board and the Vete rans Court after the 2010 Board decision, Mr. Garcia

— succeeded by Mrs. Garcia when her husband died

— raised new al leg ations of CUE. T he Veterans Court ultimately determined that th ose new CUE allegations made in th e 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 trea tment 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 recordGARCIA 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 ph ysician, in 1965 for a burn from a welding accident

. In 1969
, Dr. Smoker diagnosed Mr. Garcia with

, and pr escribed medication for

, paranoid schizophrenia.
In 2002, Mr. Garcia submitted a claim for disabil ity benefits to the Albuquerque regional office of the Veterans Benefits Administration of the U.S. Department of Vete rans 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 Decem ber 2004, the Board remanded the

case to the regional office for a VA psychiatric exami n ation , directing t he examiner to “provide a current diagn osis and indicate whether any mental disorder currently shown is characterized by paranoia” and to state “the medical probabili ties that it is attributable to the vete ran’s period of military service.” J.A. 130.

T he Appeals Management Center, processing the r emand, requested a psychiatric exam ination on January 4, 2005. A VA examiner , Dr. Greene, conducted the e xam ination on February 3, 2005. Dr. Greene’s report leaves

un clear if she looked at Mr. Garcia’s claim file and med ical 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 dia gnosis of schiz ophrenia, 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 (emphas es added)

.G ARCIA v. WILKIE 4

In October 2005, t he 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] r eviewed the claims folder[;] if not we run the risk of as king 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 r ecords like those of Mr. Garcia , which revealed that he had been promoted, had no t lost time for being absent without leave or confinement

, had been awarded the Good Co nduct M edal

, 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 t he 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 stat ed 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 State ment of the Case , in which it “confirmed” the previous denial of se rvice 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 repr esentative, submitted a brief ar guing that Dr. Greene’s medical report and addendum did not take account of other record evidence that support ed his claim for benefits

. The brief refer s to and quote s 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

con tains 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 —a ppealed that decision to the Vete rans Court. But h e soo n moved to dismiss the appeal, and the Veterans Court granted his motion.

B
In August 2007, Mr. Garcia initiated a collateral cha llenge 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 befo re 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 r egional office determined that it did not have juri sdic tion 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 t he 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 hisG ARCIA v. WILKIE 6

paranoid schizophrenia

. 1 He argu ed , 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 t he benefit of the doubt on the issue of service conne ction “[g]iven the evidence available at the time, including the testimony of [Mr. Garcia] and the reports of various medical providers. ” J.A . 6 3– 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 den ied the CUE motion in April 2010 . It found , among other things, that “there was no competent evidence, to include lay testimony, establishing a contin uity of symptom at ology since service .” J.A. 76. In July 2010, Mr. Garcia filed a motion to recon sider under 38 U.S.C. § 7103 and 38 C.F.R. §§ 20.1000
, 20.1001 , cha llen gin g that finding

. He stated that “counsel [in earlier filings] may have not adequately notified the Board of portions of the record which bear directly up on the C.U.E. issue at bar,” J.A. 18

— specifically, Mrs. Garcia’s 2004 Board testimony , which he claimed indicat ed the exis tence of a paranoia disorder when the two began dating soon after he re turned from service. Acting under 38 C.F.R. §§ 20.102(a) and 20.1001(c), t he Board ’s Deputy Vice Chairman denied the motion to reconsider

, conclu ding 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 200 8 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 lit igat[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 t he V eterans C ourt determined that the alleg ation 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 consider ing Mrs. Garcia’s 2004 testimony. The Secretary argued that Mr. Garcia had not properly presented to the Board this allegation of clear and unmi stakable error . But the Veterans Court , citing Mr. Garcia’s motion to reconsider, “set aside” the 2010 Board decision and remanded the case to th e Board for full consider ation of th e 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 unmi stakable error based on the asserted failure to consider Mrs. Garcia’s 2004 testimony. In early 2013, Mr s . Garcia submitted a motion to reconsider th e 2012 Board decision

. She contend ed that the 2006 Board decision as to service connection would have been manifestly d ifferent if the Board had considered her 2004 testimony

. In mid

- 2013,
t he Deputy Vic e Chairman denied the motion for reco nsideration.

The early

- 2013 filing that includes the motion to r econsider also include s a motion to vacate the 2012 BoardG ARCIA v. WILKIE 8

decision

. I n that motion, Mrs. Garcia contended that the 2012 decision failed to address what s he 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, t he Board denied the motion to vacate , treating it as governed by 38 C.F.R. § 20.904 ( “ Vacating a decision” ).

Mr s . Garcia appealed the Board’s October 2012 dec ision 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 alleg ation of a due process violation had not been properly presented to the Board . A nd it again remanded the matter of Mrs. Garcia’s testimony for further consideration.

In that remand

, the Board again ruled against the a llegation of clear and unmi stakable 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 th at CUE m otion in 2010

. Garcia , 29 Vet. App. at 54. On that basis, the Veterans Court ruled that a governing regulation , 38 C.F.R. § 20.140 9(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. F or that reason, t he Veterans Court concluded that the Board lacked jurisdiction to entertain either alleg a-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

T hi s 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 Vete rans 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 constit ution al issue .” I d. § 7292(d)(2)

. A
As this court explained in an en banc decision years
ago, Congress has provided for two mechanisms for a claimant l ike 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 ; s ee 38 C.F.R. § 20.1400

. This case involves the lat ter form of collateral attack

— a request for revision of a Board dec ision 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 e rror. If evidence establishes the error, the prior decision shall be reversed or revised.

. . .G ARCIA v. WILKIE 10

(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 relevan t here. First : The substantive standard for relief is high. “C lear 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 diffe rent 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 unmis takable error, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifes tly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the er ror complained of cannot be clear and unmistak able

. ” (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 regul ations or failur e to give due process , or any other general, non

- specific allegations of error, are i nsufficient to satisfy the requirement of the prev ious sentence. Motions which fail to comply with the requirements set forth in this paragraph shallGARCIA 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 jurisdi ction 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 co nstrued; 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) (requir ement to liberally construe pleadings does not apply to CUE motions filed by counsel).

Third : Under 38 C.F.R. § 20.1409, a regulation adop ted 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 2 0.140 9(c) then states an anti

multiplicity rule:

O nce 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 isG ARCIA v. WILKIE 12

no longer subject to revision on the grounds of clear and unmistakable error. Subsequent m otions relating to that prior Board decision on that issue shall be dismissed with prejudice.

Th is court has approved th e Secretary ’s reading of § 20.1409(c)

, a rule adopted in 1998, to “ p ermit [] only one CUE challenge to a Board decisio n on any given disability claim. ” Hillyard v. Shinseki , 695 F.3d 1257, 1260 (Fed. Cir. 2012) ( deferring to agency explanation of § 2 0.1409(c) in Proposed Rules , 63 Fed. Reg. 27,534, 27,538 (Dep’t of Veterans Affairs May 19, 1998), as a reaso nable interpr etation , and holding that the regulation barr ed the clai mant 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 constitutio nal 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 Cour t’s ruling that Mrs. Garcia presents here

. We reject those challenges.

We note that Mrs. Garcia does not present any cha llenge within this court’s jurisdiction under 38 U.S.C. § 7292(c) or (d)(1) to the Veterans Court’s interpretation of § 2 0.1409(c) as r eaching beyond the situation of a separate
, new CUE motion filed after a Board decis ion on a first CUE motion attacking the same claim determ in ation . That was the situation in Hillyard

— where , in fact, the second CUE motion was filed after the Board ’s dec ision on the first CUE motion became final in the strongGARCIA 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 co uld 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 involve s CUE allegation s that are presented in the continuing proceedings on th e 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 que stions abou t, 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).G ARCIA v. WILKIE 14

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 200 8 CUE motion. T he parties
agree, and the record clearly shows, that Dr. Greene’s initial e xamin ation report, the Appeals Management Center’s follow

- up request, and Dr. Greene’s adden dum

w ere 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 stat ing that Dr. Greene’s report and addendum are part of the claim file and quot ing from the Center’s follow- up request). The parties also do not dispute that Mr. Garcia first alleg ed the constitutional due process vio lation 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 par ties 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 th at motion.

3 Mrs. Garcia also does not challenge the Veterans Court’s ruling that it lacked jurisdiction to review the denial s of the motion s 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 all eg ation 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. § 20.140 9(c) ’s bar on presenting a CUE challenge regar ding 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 alleg ation

. S he conten ds 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 th e suggested exception.

In Cook , the en banc court held th at the principles of finality and res judicata generally apply to a claim dete rmination 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 common

law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of admini strative bodies that have attained finality.”). Congress

may create exceptions to the finality of a claim determin ation , as it did for Board determinat ions 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, 134 0–41, 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. atG ARCIA v. WILKIE 16

Adopting Mrs. Garcia’s proposal to exempt procedural constitutional c hallenges 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 he re 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 constit utional 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 i n this case for overriding the CUE regulation on tim ely presentation of challenges

. Th e particular due process challenge at issue here was readily available to Mr. Garcia at the time of the 200 8 CUE challenge

. W e see no constitutional difficulty in the r egulat ion’s channeling of a n available CUE cha llenge on this basis to the initial CUE motion, with CUE relief on this basis not thereafter available

. S ee United States v. Mezzanatto , 513 U.S. 196, 200

– 01 (1995) (const itutional 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. T he court in Cushman reviewed a colla teral challenge to a VA claim determination and concluded

1337 (noting th e 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 t o both Secretary and Board determinations).GARCIA v. WILKIE 17

that the presentation of an improperly altered medi cal record in the original agency proceeding violated the veteran’s constitutional right to due process. Id. at 1 291. 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 fram ework typically applicable to appellate review of veterans’ claims

. ” Id. at 1296 (cit ing In re Bailey , 182 F.3d 860, 869

– 70 (Fed. Cir. 1999) ).

We do not read t hat 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 pri nciples. Most specifically, the statement does not address timely

- presentation limits. That is not surprising: there was no timeliness issue in Cushman . T he court obse rved that “[i]t [was] not disputed that [Mr. Cushman’s] free

standing due process claim was timely raised.” Id. at 1298 n.2; see also id. at 1294 (noting statement by go vernment 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 r e Bailey for the reference to a “free

standing constitutional issue ” merely pointed to Bailey ’s characterization of such an issue as “one not also invol ving a challenge to the interpretation or validity of a sta tute 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 laterG ARCIA v. WILKIE 18

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 adjud ication 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. Garci a’s challenge to the Veterans Court ’s application of 38 C.F.R. § 2 0.1409(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 actuall y presented in the initial CUE motion . S he 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 jurisdi ction over Mrs. Garcia’s due process claim. We do not reach that argument . The Veterans Court decision before us does not rely on Andre , a nd 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 cha llenge 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 challeng e to the Vete rans Court’s factual determination that the particular allegation of CUE

— this one not a constitutional cha llenge

— was omitted from the initial CUE motion , having been presented only in July 2010 on a motion to reconsi der the Board’s April 2010 denial of th e motion

. Garcia , 29 Vet. App. at 54

. W e 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 determ ination, 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 int erpret the contents of her [CUE motion] ”). We have before us no challenge to the application of § 2 0.1409(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.