Bradley v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

N O . 97-526

G ARY D. B RADLEY , A PPELLANT ,

V.

ANTHONY J. PRINCIPI,

S ECRETARY OF V ETERANS A FFAIRS, A PPELLEE.

Before HOLDAWAY, IVERS, and GREENE, Judges.

ORDER

On June 9, 1999, this Court issued an order affirming a January 1997 decision of the

Board of Veterans' Appeals (BVA or Board) which determined that the VA regional office (VARO)

did not commit clear and unmistakable error (CUE) in denying the appellant's claims on eight

different occasions between November 1970 and November 1982. The appellant argued for the first

time on appeal to this Court a new CUE theory, namely that the Board's January 1997 decision

contained CUE to the extent that the Board failed to find CUE in the VARO decisions between 1971

and 1976 for the failure of those decisions to consider total disability due to unemployability (TDIU)

as a possible claim. The appellant appealed to the Federal Circuit, which remanded the case for

clarification as to whether this Court found that it was jurisdictionally barred from addressing the

issue presented for the first time by the appellant before us, or whether we declined to address the

issue, opting instead to invoke the theory of exhaustion of remedies. While this Court's June 9,

1999, order was in error, to the extent that it affirmed the January 1997 decision of the Board rather

than dismiss the case, the ultimate effect of the disposition was not in error. Therefore, we shall now

dismiss the case, not under a theory of exhaustion, as contemplated by the Federal Circuit's decision

which remanded the case, but rather for lack of jurisdiction over the CUE claim raised for the first

time here on appeal. Such action prevents us from ever reaching the issue of exhaustion, as we

would need first to have jurisdiction even to discuss the issue of exhaustion.

Before the Board, the appellant argued that the previous VARO decision contained CUE

because VA failed to properly assist him in developing his claims, and failed to properly evaluate

all of the evidence of record. Those CUE claims were not presented to this Court on appeal. Instead,

the appellant argued for the first time before us that the same rating decisions which he argued to the

Board contained CUE for failure of the duty to assist and for failure to properly evaluate, now

contained CUE based on the VARO's failure to consider a possible TDIU claim based on the

evidence then of record. This new CUE claim, based on a failure to address TDIU, was not raised

before the Board. The Court notes that CUE claims must be alleged with "some degree of

specificity." See Crippen v. Brown, 9 Vet.App. 412 (1996); see also Fugo v. Brown, 6 Vet.App.

40 (1993). In addition, each theory alleged necessarily constitutes a separate claim. Andre v. West,

14 Vet.App. 7, 10 (2000).

Because the appellant did not raise in his brief on appeal the specific CUE claims presented

to, and addressed by the Board, but rather focused solely on a new CUE claim, those CUE claims

which were presented to and addressed by the Board are deemed to have been abandoned. See Ford

v. Gober, 10 Vet.App. 531 (1997) (issues and claims not pursued on appeal are considered

abandoned); see also Bucklinger v. Brown, 5 Vet.App. 435 (1993). As for the CUE claim that the

appellant presented here on appeal, this Court is jurisdictionally barred from hearing such claims

in the first instance, and therefore, we must dismiss this case accordingly.

This Court's jurisdiction to review CUE claims is based upon the "unassailable premise that

we do not have jurisdiction to review [them] unless it has been previously adjudicated by the Board."

Andre, supra. (Citing Sondel v. Brown, 6 Vet.App. 218 (1994)). "[A] claimant may not raise for

the first time a specific CUE claim before this Court; such . . . request[s] . . . are not within our

jurisdiction . . . . If . . . the appellant has failed to raise the specific issue before the Board, the

appeal must be dismissed as to that issue . . . ." Sondel, 6 Vet.App., at 220. Accordingly, as in

Sondel, this Court will dismiss the new CUE claim as it is improperly and improvidently raised for

the first time before this Court.

Upon consideration of the foregoing, it

ORDERED that the Secretary's motion is granted, and the case DISMISSED for lack of

jurisdiction.

DATED: January 29, 2001 PER CURIAM.

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