United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JOSEPH C. HILLYARD, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2011-7157 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 08-1733, Judge Lawrence B. 

Hagel. 

___________________________ 

Decided: August 17, 2012 

___________________________ 

KENNETH M. CARPENTER, Carpenter, Chartered of 

Topeka, Kansas, argued for claimant-appellant. 

MARTIN F. HOCKEY, JR. Assistant Director, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

respondent-appellee. With him on the brief were TONY 

WEST, Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, and TODD M. HUGHES, Deputy Director. Of 

counsel on the brief were MICHAEL J. TIMINSKI, Deputy 
HILLYARD v. SHINSEKI 2

Assistant General Counsel and JONATHAN E. TAYLOR, 

Attorney, United States Department of Veterans Affairs, 

of Washington, DC 

__________________________ 

Before LINN, MOORE, and O’MALLEY, Circuit Judges. 

MOORE, Circuit Judge. 

Mr. Hillyard appeals from a decision of the Court of 

Appeals for Veterans Claims (Veterans Court) affirming 

the Board of Veterans Appeals’ (Board’s) dismissal of Mr. 

Hillyard’s second request for revision as barred by 

38 C.F.R. § 20.1409(c). For the reasons set forth below, 

we affirm.

BACKGROUND

Mr. Hillyard served in the United States Army. While 

in service, he suffered a head injury and was hospitalized 

for two weeks. After leaving the service, Mr. Hillyard 

filed a single claim for service connection for a mental 

condition, which he attributed to his in-service head 

injury. The Veterans Administration (VA) denied his 

claim and the Board affirmed. Mr. Hillyard filed a request for revision alleging clear and unmistakable error 

(CUE) by the Board in failing to grant service connection 

for an adjustment disorder or for a decline in cognitive 

ability due to a head injury. The Board denied Mr. 

Hillyard’s request for revision and the Veterans Court 

affirmed. Mr. Hillyard later filed a second request for 

revision alleging CUE by the Board in failing to consider 

and apply 38 U.S.C. §§ 105(a) and 1111, a different CUE 

allegation from the one he made in his first request. The 

Board dismissed Mr. Hillyard’s second request for revision with prejudice, concluding 38 C.F.R. § 20.1409(c) 

permitted only one request for revision to be filed. The 

Veterans Court affirmed. Mr. Hillyard appeals, arguing 
3 HILLYARD v. SHINSEKI

that § 20.1409(c) permits multiple CUE challenges as long 

as each challenge is based on a different CUE theory. We 

have jurisdiction under 38 U.S.C. § 7292. 

DISCUSSION

Our jurisdiction to review decisions of the Veterans 

Court is limited by statute. Guillory v. Shinseki, 603 F.3d 

981, 986 (Fed. Cir. 2010). We have jurisdiction over “all 

relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). 

We lack jurisdiction over any “challenge to a factual 

determination” or “challenge to a law or regulation as 

applied to the facts of a particular case” absent a constitutional issue. 38 U.S.C. § 7292(d)(2). We set aside a 

Veterans Court decision only if it is “arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance 

with law . . . .” 38 U.S.C. § 7292(d)(1)(A). 

This case presents a solitary legal question: what the 

term “issue” means in 38 C.F.R. § 20.1409(c). The Veterans Court concluded, based in significant part on our 

decision in Disabled American Veterans v. Gober, 234 F.3d 

682 (Fed. Cir. 2000), that “issue” is synonymous with 

“claim.” Hillyard v. Shinseki, 24 Vet. App. 343, 353 

(2011). The Veterans Court held that § 20.1409 limits a 

veteran to one request for revision, or CUE challenge, for 

each disability claim finally decided by the Board, although that one CUE challenge may contain numerous 

arguments or theories. Id. at 353-54. Mr. Hillyard contends that “issue” in § 20.1409 corresponds to “theory” or 

specific CUE allegation, which means a veteran may file 

multiple CUE challenges to a disability claim finally 

decided by the Board as long as each challenge is based on 

a different theory. 

Revision of Board decisions based on CUE is authorized by 38 U.S.C. § 7111. See Disabled Am. Veterans, 234 
HILLYARD v. SHINSEKI 4

F.3d at 686-87. To implement § 7111, the VA promulgated regulations including 38 C.F.R. §§ 20.1401 and 

20.1409 (Rules 1401 and 1409). Id. at 687-88. Rule 

1409(c) states: 

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 

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. 

38 C.F.R. § 1409(c) (emphasis added). Rule 1401(a) 

defines “issue”: 

Unless otherwise specified, the term “issue” in 

this subpart means a matter upon which the 

Board made a final decision (other than a decision 

under this subpart). . . . 

38 C.F.R. § 1401(a). In its notice of rulemaking, the VA 

explained the operation of then proposed Rule 1409: 

Proposed Rule 1409 . . . would provide that, once 

there is a final decision on a motion under the 

proposed subpart . . . the prior Board decision on 

that issue would no longer be subject to revision on 

the grounds of CUE and that subsequent motions 

on such decisions would be dismissed with prejudice. For example, if a party challenged a decision 

on service connection for failing to apply the 

proper diagnostic code in the Schedule for Rating 

Disabilities, 38 CFR part 4, and the Board denied 

the motion, a subsequent motion which alleged 

that the Board failed to apply the presumption of 

sound condition at the time of entry into service, 

38 U.S.C. 1111, would be dismissed with preju-
5 HILLYARD v. SHINSEKI

dice. It would be clearly important that a moving 

party carefully determine all possible bases for 

CUE before he or she files a motion under the proposed subpart. 

63 Fed. Reg. 27,538 (proposed May 19, 1998) (codified at 

38 C.F.R. pt. 20) (emphasis added). After the VA published the final rules, several parties challenged their 

validity. We considered those challenges and held that 

the rules at issue in this case are valid. Disabled Am. 

Veterans, 234 F.3d at 693-94 (Rule 1401); id. at 702 (Rule 

1409). 

Mr. Hillyard does not challenge the validity of the 

rules on appeal. Rather, he contends that our decisions in 

Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002), and 

Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005), 

hold that “issue” means a specific CUE allegation—the 

“matter” upon which the Board makes a final determination. Mr. Hillyard argues that these cases hold that 

multiple requests for revision can be made to challenge 

VA regional office (RO) decisions and that there is no 

reason for Board decisions to be treated differently. Mr. 

Hillyard argues that this court did not address in Disabled American Veterans the specific question of whether 

an additional CUE challenge can be brought when it 

presents a novel theory not previously considered by the 

Board. 

Mr. Hillyard argues that Robinson v. Shinseki, 557 

F.3d 1355 (Fed. Cir. 2009), which recognized the specific 

nature of CUE challenges, held that each new CUE 

theory is independent for res judicata purposes and that 

unraised CUE theories could be raised in a new action. 

Mr. Hillyard argues that Disabled American Veterans, 

Andre, Andrews, and Robinson collectively show that an 

“issue” decided by the Board in a request for revision 
HILLYARD v. SHINSEKI 6

under 38 U.S.C. § 7111 is the same “issue” considered by 

the Board in an appeal from a RO decision—the ‘“theory’ 

or specific allegation of [CUE] presented in the request for 

revision.” Appellant Br. 16. Mr. Hillyard thus contends 

that a veteran can raise multiple CUE challenges to 

Board decisions under § 20.1409(c) as long as each CUE 

challenge raises a new “issue.” 

Mr. Hillyard and the government dispute whether 

this issue was decided in Disabled American Veterans. 

Regardless, the outcome is the same because we must 

defer to an agency’s reasonable interpretation of its own 

regulations. Cathedral Candle Co. v. U.S. Int’l Trade 

Comm’n, 400 F.3d 1352, 1364 (Fed. Cir. 2005) (“[I]t is well 

settled that an agency’s interpretation of its own regulations is entitled to broad deference. . . . [T]he agency’s 

construction of its own regulations is ‘of controlling weight 

unless it is plainly erroneous or inconsistent with the 

regulation.’” (quoting Bowles v. Seminole Rock & Sand 

Co., 325 U.S. 410, 414 (1945))). The VA’s interpretation of 

Rule 1409(c) was clearly noted in its notice of rulemaking 

issued some fourteen years ago. In that notice, the VA 

concretely explained why it is “clearly important that a 

moving party carefully determine all possible bases for 

CUE before he or she files a motion” for revision: 

For example, if a party challenged a decision on 

service connection for failing to apply the proper 

diagnostic code in the Schedule for Rating Disabilities, 38 CFR part 4, and the Board denied the 

motion, a subsequent motion which alleged that 

the Board failed to apply the presumption of 

sound condition at the time of entry into service, 

38 U.S.C. 1111, would be dismissed with prejudice. 
7 HILLYARD v. SHINSEKI

63 Fed. Reg. 27,538. In other words, the VA clearly 

explained that Rule 1409(c) permits only one CUE challenge to a Board decision on any given disability claim. 

The interpretation proffered by the VA in this case is no 

different from the one set forth in its notice of rulemaking 

and is consistent with the language of the regulation. 

The authority cited by Mr. Hillyard does not persuade 

us otherwise. Mr. Hillyard’s reliance on Andre and Andrews is misplaced because those cases dealt with RO 

decisions. CUE challenges to RO decisions—under 38 

U.S.C. § 5109A and 38 C.F.R. § 3.105—have no effect on 

CUE challenges to Board decisions, which fall under a 

different statute and regulations—38 U.S.C. § 7111 and 

38 C.F.R. §§ 20.1401-1411. Andre and Andrews do not 

apply here. 

Mr. Hillyard’s reliance on Robinson is also misguided. 

Robinson was about the obligation to liberally read filings; it did not address a CUE challenge. 557 F.3d at 

1359 (“This case presents the question whether the obligation to liberally read filings [under 38 C.F.R. § 20.202] 

applies to filings by counsel in the direct appeal phase of 

proceedings before the Board.”). Although we explained 

in Robinson that CUE claims are different from direct 

appeals in the context of determining whether pleadings 

must be read “in a liberal manner,” there was no CUE 

claim at issue in Robinson. The cases cited by Mr. 

Hillyard fail to provide any reason that we should not 

defer to the VA’s reasonable interpretation. 

CONCLUSION

The interpretation of Rule 1409(c) proffered by the VA 

is consistent with the language of the regulation and is in 

harmony with the VA’s description of the regulation in its 

notice of rulemaking. Accordingly, we defer to the VA’s 

interpretation. 
HILLYARD v. SHINSEKI 8

AFFIRMED