Robert J. May v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 04-0774

ROBERT J. MAY , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided August 5, 2005 )

Robert May, pro se.

R. Randall Campbell, Assistant General Counsel; Carolyn F. Washington, Deputy Assistant

General Counsel; and Nolan D. Paige, all of Washington, D.C., were on the pleading for the

appellee.

Before STEINBERG, Chief Judge,1 and IVERS and SCHOELEN, Judges.

STEINBERG, Chief Judge: Veteran Robert J. May, the pro se appellant, seeks review of an

April 26, 2004, decision of the Board of Veterans' Appeals (Board or BVA) that denied a claim of

clear and unmistakable error (CUE) in a March 7, 2003, Board decision that, inter alia, had denied

Department of Veterans Affairs (VA) service connection for a back disability, and had denied a

rating higher than 10% for his service-connected sciatic nerve condition. Record (R.) at 1-11. The

appellant and the Secretary each filed a brief. On March 29, 2005, the Secretary filed a motion to

dismiss the instant appeal, and on that same date the appellant filed an opposition to that motion.

For the reasons set forth below, the Court will vacate the April 2004 BVA decision and will dismiss

as moot the Secretary's March 29, 2005, motion.

1

Jonathan R. Steinberg became Chief Judge of the Court at noon on August 5, 2005.

I. Relevant Background

In October 2002, the appellant appealed to the Board several VA regional office (RO)

decisions that, inter alia, had denied his claim for VA service connection for a back disability and

his increased-rating claim for sciatic-nerve disability. R. at 268-95, 317-20. On March 7, 2003, the

Board agreed with the VARO decisions and issued a decision that (1) denied service connection for

degenerative disc disease of the lumbar spine; (2) denied service connection for a thoracic-spine

disability; and (3) denied a disability rating higher than 10% for the appellant's service-connected

incomplete paralysis of the sciatic nerve. R at 321-42.

On June 25, 2003, 110 days after the date stamped on the March 2003 BVA decision, the

appellant filed with the Board a pleading entitled "Motion for Revision and for Reconsideration".

Secretary's (Sec'y) Motion (Mot.) Exhibit (Exh.) 1. That pleading included (1) a motion for revision

based on CUE and (2) a motion for reconsideration to be considered "[a]lternatively and in the event

the Motion for Revision is denied". Ibid. After the Board's April 26, 2004, decision denying the

CUE claim, the appellant on May 5, 2004, timely filed a Notice of Appeal (NOA) with this Court

as to that decision. On June 3, 2004, the Board Deputy Vice Chairman denied the motion for

reconsideration of the March 2003 BVA decision. Sec'y Mot. Exh. 4. On June 21, 2004, the

appellant filed an NOA seeking direct review by this Court of the March 2003 Board decision.

Hence, the Court has on its docket two appeals as to the same essential matter: No. 04-1057,

the direct appeal of the March 2003 BVA decision, and No. 04-0774, the appeal of the April 2004

BVA decision (hereinafter the "CUE decision") that found no CUE in the March 2003 BVA

decision. It is only the latter appeal that is before this panel, which was assigned in order to rule on

the Secretary's motion, dated November 24, 2004, to dismiss this appeal on the ground that the Court

"lacks subject[-]matter jurisdiction over the CUE [decision]" (Sec'y Mot. at 2). On December 10,

2004, the appellant submitted a response in opposition to the Secretary's dismissal motion. On

February 2, 2005, the Court stayed proceedings in this case to allow the appellant time to obtain

representation, in light of the Court's determination that a panel should be assigned to consider this

appeal. To date, no counsel has entered an appearance for the appellant.

2

II. Contentions on Appeal

The issue before the Court in this appeal is the Board's jurisdiction to have issued the CUE

decision under the circumstances present here. As grounds for opposing the Secretary's motion to

dismiss the appeal of the CUE decision, the appellant argues, inter alia, (1) that "at the time of the

filing of the [CUE claim] the March 7, 2003, BVA decision was a final decision," and that "that

decision remained in effect, even though abated, unless superceded by another final order" (Mot. in

Opposition (Opp.) at 11); (2) that "the abatement process underlying the March 7, 2003, decision

does not affect the collateral CUE attack or the [BVA] decision tendered as a result of that attack"

(Mot. Opp. at 10); and (3) that the Board's adjudication of the CUE claim on April 26, 2004, before

denying his motion for reconsideration on August 10, 2004, was nonprejudicial error. Mot. Opp.

at 15.

The Secretary contends that the instant appeal as to the Board's April 2004 CUE decision

should be dismissed because "[t]he March 7, 2003, [BVA] decision was not final" (Sec'y Mot. at 1),

and asserts that the Board, in April 2004, had adjudicated the appellant's CUE claim "without

recognizing that [the a]ppellant in June 2003 had filed a motion for reconsideration". Mot at 2. The

Secretary contends further that "[b]ecause the March 2003 decision of the Board is currently pending

before this Court, it is not final and the Board and the Court lacks [(sic)] subject[-]matter jurisdiction

over the CUE claim." Ibid.

III. Applicable Law and Regulation

A. CUE Claims

Section 7111 of title 38, U.S. Code, provides:

§ 7111. Revision of decisions on grounds of clear and

unmistakable error

(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.

(b) For the purposes of authorizing benefits, a rating or other

adjudicative decision of the Board that constitutes a reversal or

revision of a prior decision of the Board on the grounds of clear and

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unmistakable error has the same effect as if the decision had been

made on the date of the prior decision.

(c) Review to determine whether clear and unmistakable error

exists in a case may be instituted by the Board on the Board's own

motion or upon request of the claimant.

(d) A request for revision of a decision of the Board based on

clear and unmistakable error may be made at any time after that

decision is made.

38 U.S.C. § 7111. Regulation § 20.1403(a) defines CUE in a prior BVA decision as follows:

[CUE] 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.

Generally, either the correct facts, as they were known at the time,

were not before the Board, or the statutory and regulatory provisions

extant at that time were incorrectly applied.

38 C.F.R. § 20.1403(a) (2004); see Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc)

(noting that "[CUE is] the sort of error which, had it not been made, would have manifestly changed

the outcome"); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting

the "manifestly changed the outcome" language in Russell, supra). "Review for [CUE] in a prior

Board decision must be based on the record and the law that existed when that decision was made."

38 C.F.R. § 20.1403(b) (2004); see Russell, 3 Vet.App. at 314. "In order for there to be a valid claim

of [CUE], . . . . [t]he claimant, in short, must assert more than a disagreement as to how the facts

were weighed or evaluated." Id. at 313; see 38 C.F.R. § 20.1403(d)(3) (2004); Damrel v. Brown,

6 Vet.App. 242, 246 (1994). Moreover, a CUE claim must identify the alleged error(s) with "'some

degree of specificity'". Crippen v. Brown, 9 Vet.App. 412, 420 (1996) (quoting Fugo v. Brown,

6 Vet.App. 40, 44 (1993) (concluding that "to reasonably raise CUE there must be some degree of

specificity as to what the alleged error is and . . . persuasive reasons must be given as to why the

result would have been manifestly different")); see 38 C.F.R. § 20.1404(a), (b) (2004).

As a threshold matter, a CUE claim cannot be raised for the first time before this Court but,

rather, such a claim must have been the subject of a final prior BVA adjudication. See Russell,

4

3 Vet.App. at 314-15. On appeal of a BVA determination that there was no CUE in a prior final

BVA decision, the Court's review is limited to deciding whether the Board's conclusion is "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law", 38 U.S.C.

§ 7261(a)(3)(A); see Damrel, 6 Vet.App. at 246, and whether it is supported by an adequate

statement of "reasons or bases", 38 U.S.C. § 7104(d)(1). Our review is de novo ("not in accordance

with law" standard) as to whether a viable CUE claim has been presented, see Lane v. Principi,

16 Vet.App. 78, 83 (2002), aff'd 339 F.3d 1331, 1339 (Fed. Cir. 2003), and, if so, whether an

applicable law or regulation was not applied or was incorrectly applied, see Kent v. Principi,

389 F.3d 1380, 1384 (Fed. Cir. 2004); see Andrews v. Principi, 18 Vet.App. 177, 180 (2004). The

Court's caselaw pertaining to Board decisions on claims of CUE in prior final RO decisions is

equally applicable to Board decisions regarding collateral attacks on prior BVA decisions. See

Jordan (Timothy) v. Principi, 17 Vet.App. 261, 268 (2003), aff'd sub nom. Jordan v. Nicholson,

401 F.3d 1296 (Fed. Cir. 2005).

B. Finality of Board Decisions

As to the finality of a Board decision, 38 C.F.R. § 20.1100 provides:

§ 20.1100 Rule 1100. Finality of decisions of the Board.

(a) General. All decisions of the Board will be stamped with

the date of mailing on the face of the decision. Unless the Chairman

of the Board orders reconsideration, and with the exception of matters

listed in paragraph (b) of this section, all Board decisions are final on

the date stamped on the face of the decision. With the exception of

matters listed in paragraph (b) of this section, the decision rendered

by the reconsideration Panel in an appeal in which the Chairman has

ordered reconsideration is final.

(b) Exceptions. Final Board decisions are not subject to

review except as provided in 38 U.S.C. [§§] 1975 and 1984 and 38

U.S.C. chapters 37 and 72. A remand is in the nature of a preliminary

order and does not constitute a final decision of the Board.

38 C.F.R. § 20.1100 (2004). As to the appealability of Board decisions to this Court, 38 U.S.C.

§ 7266(a) provides:

5

§ 7266. Notice of appeal

(a) In order to obtain review by the Court of Appeals for

Veterans Claims of a final decision of the Board of Veterans'

Appeals, a person adversely affected by such decision shall file a

notice of appeal with the Court within 120 days after the date on

which notice of the decision is mailed pursuant to section 7104(e) of

this title.

38 U.S.C. § 7266(a). In other words, even though section 7266(a) refers to a "final decision of the

Board", any such "final" Board decision that is subject to review in this Court, pursuant to 38 U.S.C.

§ 7266 and our caselaw (as discussed in part IV.A., below), is not truly final while it is "subject to"

such review or undergoing such review here or thereafter (in the U.S. Court of Appeals for the

Federal Circuit (Federal Circuit) or the U.S. Supreme Court). Moreover, the finality of a Board

decision for the purposes of the availability of judicial review may be abated. As to the abatement

of the finality of a Board decision, 38 U.S.C. § 7103(a) provides:

§ 7103. Reconsideration; correction of obvious errors

(a) The decision of the Board determining a matter under

section 7102 of this title is final unless the Chairman orders

reconsideration of the decision in accordance with subsection (b).

Such an order may be made on the Chairman's initiative or upon

motion of the claimant.

38 U.S.C. § 7103(a) (boldface-italic emphasis added). In Rosler v. Derwinski, this Court held, as

to finality:

[A]lthough the judicial review period begins to run, as to a final

administrative agency decision, on the date on which that decision is

final, its finality is defeated and that judicial appeal period is erased

when a timely motion for administrative reconsideration is filed

within the judicial appeal period and a new, full judicial appeal period

as to the underlying agency decision is triggered when the agency

denies the reconsideration motion.

Rosler, 1 Vet.App. 241, 249 (1991) (emphasis added). Thus, Rosler established that finality for the

purposes of the availability of judicial review is abated by the filing, with the Board Chairman, of

a motion for reconsideration. In Wachter v. Brown, the Court also discussed this issue:

6

Essentially, as long as the motion for reconsideration of the decision

remains pending before the Chairman, there is always a possibility

that the motion will be granted, an event which would render judicial

review unnecessary. See BellSouth Corp. v. F.C.C., 17 F.3d 1487,

1489 (D.C. Cir. 1994). Consequently, when the veteran files a

motion for reconsideration of a BVA decision and, at the same time,

files an NOA with the Court, the decision of the BVA is nonfinal for

purposes of judicial review. A party cannot be in "two places at the

same time." Id. at 1489.

Wachter, 7 Vet.App 396, 397 (1995) (boldface-italic emphasis added). Rosler and Wachter both

addressed finality in terms of a claim that is final but appealable. That is the only way that a claim

could potentially be "in two places at the same time" and is the reason that a motion for

reconsideration renders a claim "nonfinal for purposes of judicial review". Ibid. Hence, in Rosler,

the Court concluded that when the BVA receives a motion for reconsideration, the case is withdrawn

from the final-but-appealable stage (that is, the decision becomes nonfinal for purposes of the

availability of judicial review) because the Board has not "disassociate[d] itself from the case", Clay

v. United States, 537 U.S. 522, 527 (2003); the Chairman must rule on the motion and the Board may

ultimately reconsider the outcome.

IV. Analysis

A. Finality of the March 2003 BVA Decision

"Finality is variously defined; like many legal terms, its precise meaning depends on context."

Clay, supra. In Clay, the U.S. Supreme Court described two basic concepts of finality: For the

purposes of the availability of judicial review, finality attaches "when the district court disassociates

itself from the case, leaving nothing to be done at the court of first instance save execution of the

judgment." Clay, supra (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996), and

RESTATEMENT (SECOND ) OF JUDGMENTS § 13, Comment b (1980)). For other purposes, such as a

collateral attack on an otherwise final decision, finality attaches at a different stage. A "collateral"

attack is defined as "an attack on a judgment in a different proceeding." BLACK'S LAW DICTIONARY ,

255 (7th ed. 1990). In terms of postconviction-relief collateral attack in a criminal case, the Supreme

Court has stated: "[F]inality has a long-recognized, clear meaning: Finality attaches when this Court

7

[(the Supreme Court)] affirms a conviction on the merits on direct review or denies a petition for a

writ of certiorari, or when the time for filing a certiorari petition expires." Clay, 537 U.S. at 528

(defining finality for statute providing "habeas[-]like relief" in accord with Supreme Court's

"consistent understanding of finality in the context of collateral review"). That is, for the purpose

of a habeas-corpus collateral attack, finality attaches when a claim becomes unappealable on direct

review. Indeed, this same definition of finality pertains to decisions rendered by this Court. See

38 U.S.C. § 7291(a) (providing that decision of this Court "shall become final upon the expiration

of the time allowed for filing . . . a notice of appeal from such decision, if no such notice is duly filed

within such time"); see also 28 U.S.C. § 2412(d)(2)(G) (defining "final judgment" for purposes of

initiating 30-day period under section 2412(d)(1)(B) during which application for fees and expenses

under Equal Access to Justice Act ((EAJA) may be filed). The instant case involves both of these

concepts of finality – finality of a Board decision for the purposes of appealability and finality of a

Board decision for the purposes of collateral attack after all avenues for direct appeal are foreclosed.

1. Finality for the Purposes of Appealability. In the instant case, the Secretary appears to

assert that the appellant's submitting of the motion for reconsideration abated the finality of the

March 2003 Board decision, and, that, therefore, the Board had adjudicated the CUE claim in error.

Sec'y Mot. at 2. The Court agrees that the Board erred by adjudicating the CUE claim. However,

to the extent that the Secretary's argument is premised on his belief that the appellant's CUE motion

and the motion for reconsideration were filed concurrently, we disagree with his argument because,

inter alia, it does not appear to the Court that the appellant's motion for reconsideration was filed

before, or concurrently with, the CUE claim. See Losh v. Brown, 6 Vet.App. 87 (1993) (holding that

simultaneous filings of motion for reconsideration and NOA will render agency action nonfinal).

Rather, the appellant's pleading in this case expressly stated that the motion for reconsideration was

being filed "in the event that the CUE claim was denied". Sec'y Mot. Exh. 1. In such case, the

motion for reconsideration would become operative only if and when the Board denied the CUE

claim; hence, the CUE claim was not effectively filed at a point in time when a motion for

reconsideration had rendered the claim nonfinal for the purposes of the availability of judicial

review.

8

Although it may appear at first that the CUE claim was validly filed, if it were, a question

would have then arisen as to whether the filing of the CUE claim rendered the BVA decision

nonfinal (by the same mechanism by which a motion for reconsideration would have abated finality),

or whether, conversely, the 120-day judicial appeal period expired during the time that the Board was

considering the CUE claim. An affirmative answer to the latter question would leave the appellant

at a great disadvantage; having bypassed direct appeal, his only avenue for review of the March 2003

BVA decision would be handicapped by the heightened burdens of proof and pleading that are

characteristic of a collateral CUE attack. However, an answer in the negative would leave the Court

with the anomalous result that it now faces – review of the same Board decision via direct review

and via review of a Board denial of revision on the grounds of CUE (the latter being a CUE claim

that, as discussed below, is expressly prohibited by 38 C.F.R. § 20.1400). The reason that this

quandary is created, as we conclude below, is that the question presented never should have been

asked in the first place. That is, a CUE claim (or any collateral attack) cannot lie as to a decision

that is still open to direct review. The sole purpose of a CUE claim is to provide a VA claimant with

an opportunity to challenge a decision that is otherwise final and unappealable.

Hence, although the Court concludes that the motion for reconsideration had no bearing on

whether the CUE claim was properly filed in this case, we agree that the 2003 BVA decision's lack

of "finality" at the time that the CUE claim was filed is the dispositive issue in the instant matter.

As discussed above, although a motion for reconsideration does affect "finality" to the extent that

that term implies finality for the purposes of the availability of judicial review – that is, a claim that

is final but appealable to this Court – "finality" for the purposes of the availability of judicial review

is not the same "finality" that enables an appellant to file a CUE claim or any other collateral attack.

2. Finality for the Purposes of Collateral Attack. In 38 U.S.C. § 7111, Congress has

provided VA claimants a remedy of collateral attack so that they may have a vehicle for attacking

a final Board decision. The Supreme Court has reviewed other forms of collateral attack, such as

habeas-corpus petitions, and recognized that such petitions are "not designed as a substitute for direct

review." Teague v. Lane, 489 U.S. 288, 306 (1989) (quoting Mackey v. United States, 401 U.S. 667,

683 (1970) (Harlan, J., concurring)). Rather, such forms of collateral attack provide "an avenue for

upsetting judgments that are otherwise final". Mackey, supra.

9

The statute of limitations for habeas-corpus petitions prescribes when a collateral attack may

be filed. Similarly, in prescribing the regulations to provide for CUE attacks on BVA decisions, the

Secretary explained that a CUE challenge could be made "[o]nce a VA decision has become final

– whether by completion or abandonment of the appeals process." 63 Fed. Reg. 27,534, 27,535

(May 10, 1998) (notice of proposed rulemaking). Under this Court's enabling statute, a BVA

decision becomes final and unappealable to this Court when an NOA is not filed within 120 days

after the date of mailing of notice of the Board decision, 38 U.S.C. § 7266(a), and no basis exists

for tolling the 120-day judicial appeal period. See Rosler, supra; see also Irwin v. Dep't of Veterans

Affairs, 498 U.S. 89, 96 (1990); Arbas v. Nicholson, 403 F.3d 1379 (Fed. Cir. 2005); Barrett v.

Principi, 363 F.3d 1316 (Fed. Cir. 2004); Evans (Billy) v. West, 12 Vet.App. 396, 399 (1999) (citing

Bailey v. West, 160 F.3d 1360, 1365 (1998), and other cases regarding equitable tolling of NOA-

filing period under certain circumstances). Although no statute of limitations exists for the filing of

a CUE claim, the conclusion that such a claim cannot properly be filed while that claim is still

appealable on direct review is supported by the definition of "finality" as to CUE claims that is

provided in 38 C.F.R. § 20.1401(a), which states:

§ 20.1401 Rule 1401. Definitions.

(a) 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). As

used in the preceding sentence, a "final decision" is one

which was appealable under [c]hapter 72 of title 38, United

States Code, or which would have been so appealable if such

provision had been in effect at the time of the decision.

38 C.F.R. § 20.1401(a) (2004) (boldface-italic emphasis added). As noted by the emphasized

language, under this regulation a "final decision" is defined as "one which was appealable" pursuant

to the statutory provisions providing for judicial review of BVA decisions in this Court (including

the 120-day judicial-appeal period), or which "would have been so appealable" if judicial review in

this Court had been available at the time of the decision. Ibid. (emphasis added). Although

38 U.S.C. 7111(d) provides that "[a] request for revision of a decision of the Board based on [CUE]

may be made at any time after that decision is made", that provision cannot be interpreted to mean

10

that a CUE claim may lie when the underlying Board decision may be directly appealed because such

an interpretation would not comport with the essential nature of a collateral attack. Rather, what

section 7111(d) means is that a CUE claim may be filed for as long as any claimant has standing to

file such a claim, without regard to how long ago the VA decision became final and unappealable.

Furthermore, general principles of limited review in cases of collateral attack are reflected

in the requirements for a collateral attack based on CUE – requirements that emphasize that CUE

collateral attacks are not matters on direct review. The section 7111 statutory provision for a CUE

attack on a final BVA decision provides in subsection (b) that "a reversal or revision of a prior

decision of the Board on the grounds of [CUE] has the same effect as if the decision had been made

on the date of the prior Board decision." 38 U.S.C. § 7111(b). The implementing VA regulation

spells out that "[r]eview for [CUE] in a prior Board decision must be based on the record and the

law that existed when that decision was made", and that CUE does not include the otherwise

correct application of a statute or regulation where, subsequent to the Board decision challenged,

there has been a change in the interpretation of the statute or regulation." 38 C.F.R.

§ 20.1403(b)(1), (e) (emphasis added). See Russell, 3 Vet.App. at 314 (holding that "[r]eview for

[CUE] in a prior Board decision must be based on the record and the law that existed when that

decision was made"); Teague, 489 U.S. at 310 (holding that in habeas petitions, generally, new rules

should not be applied retroactively).

Moreover, a VA claimant's ability to bring a CUE claim as to a Board decision that has been

directly appealed to this Court is already very substantially limited by regulation. Specifically,

regulation § 20.1400, provides in pertinent part:

§ Rule 1400. Motions to revise Board decisions

....

(b) All final Board decisions are subject to revision under this

subpart except:

(1) Decisions on issues which have been appealed to and

decided by a court of competent jurisdiction; and

(2) Decisions on issues which have subsequently been decided

by a court of competent jurisdiction.

11

38 C.F.R. § 20.1400(b) (2004). The rationale for this limitation is that "it would be inappropriate

for an inferior tribunal to review the actions of a superior [tribunal]." 64 Fed. Reg. 2134, 2135

(Jan. 13, 1999) (adoption of final CUE regulations) (citing Smith (William A.) v. Brown, 35 F.3d

1516 (Fed. Cir. 1994), and Duran v. Brown, 7 Vet. App. 216 (1994)). In Disabled American

Veterans v. Gober (DAV v. Gober), 234 F.3d 682 (Fed. Cir. 2000), the Federal Circuit noted that

this regulation "prevents the Board from reviewing a previous Board decision on an issue for CUE

when the previous issue has been appealed to, or decided by, a court of competent jurisdiction, such

as the Court of Appeals for Veterans Claims, and that reviewing court has decided the issue the

claimant seeks to review for CUE." Id. at 693. Furthermore, the Federal Circuit noted the following

procedural justification for the § 20.1400(b)(1) preclusion:

If a superior court, such as the Court of Appeals for Veterans Claims,

affirms the determination of the Board on a particular issue, that

Board decision is replaced by the Court of Appeals for Veterans

Claims decision on that issue. Thus, there is no longer any decision

by the Board that can be subject to revision.

Ibid. (emphasis added). The Federal Circuit revisited this issue in Winsett v. Principi, in the context

of an appellant who had submitted to the Board a CUE claim as to a BVA decision that had been

appealed to and affirmed by this Court. Winsett, 341 F.3d 1329 (Fed. Cir. 2003), cert. denied,

540 U.S. 991 (2003). The Federal Circuit upheld this Court's affirmance of the Board's dismissal of

that CUE claim, and concluded:

This appeal is not an attempt to re[]open a claim pursuant to

38 U.S.C. § 5108 on the ground that new and material evidence has

been found. Moreover, it is not a new issue, different from the one

adjudicated previously. Instead, this appeal is one in which the facts

have previously been reviewed by a court in light of the relevant law

on the same claim. If there had been CUE, then it surely would have

been, or should have been, raised before. In fact, [the appellant]

would have been obligated to raise any error that was clear and

unmistakable when she brought her earlier appeals. Because the

earlier case has been decided, and all appeals exhausted, we conclude

that there could not have been CUE as a matter of law. That

conclusion is what is embodied in § 20.1400(b), which the [Court of

Appeals for Veterans Claims] properly interpreted.

12

Id. at 1332. The Federal Circuit thus recognized that a claimant is foreclosed from (and could not

possibly benefit from) bringing a CUE claim as to a Board decision on a matter that had been

reviewed previously in this Court.

Hence, in the instant case, once this Court reviews the direct appeal of the March 2003

decision – the case pending here in No. 04-1057 – and enters final judgment in that appeal, the

appellant's CUE claim as to the same matter dealt with by the Court in that appeal would be barred

by § 20.1400(b). In light of the action that the Court is taking here to vacate the Board's CUE

decision, the Secretary's motion to dismiss the instant appeal will be rendered moot and will

therefore be dismissed.

B. BVA Stays Pending Court Consideration of CUE Claims

The Court notes that 38 C.F.R. § 20.1410 ("Stays pending court action"), which provides that

the Board "will stay its consideration of a [CUE claim] upon receiving notice that the Board decision

that is the subject of the [CUE claim] has been appealed to a court of competent jurisdiction"

(38 C.F.R. § 20.1410 (2004)), may be read as implying that a CUE claim may properly be filed with

the Board during the 120-day judicial appeal period for appeals to this Court, or during any

applicable appeal period for an appeal following a decision by this Court – that is, before the claim

has become final and unappealable. Such a reading, however, would be inconsistent with the

collateral nature of a CUE claim as envisioned by section 7111 and not in accordance with the

Court's holding in this case. As so interpreted, the Court would have to invalidate the regulation as

ultra vires. See 38 U.S.C. § 7261(a)(3)(C) (providing that Court shall "hold unlawful and set aside"

regulations of Secretary found to be "in excess of statutory jurisdiction, authority, . . . or in violation

of a statutory right"); Ozer v. Principi, 14 Vet.App. 257, 264 (2001) (holding that § 21.3046(c)

(2000) "cannot stand" because it "imposes a 10-year limitation . . . that was not contained in or

authorized by 38 U.S.C. § 3512, or any other provisions of title 38[, U.S. Code]"); Cole v. Derwinski,

2 Vet.App. 400, 401-02 (1992) (invalidating subparagraphs (2) and (3) of 38 C.F.R. § 3.812(f)

(1991) as "in excess of statutory authority"). In order to avoid such a result, the Court construes this

regulation as providing that upon receipt of a premature CUE claim the Board must hold the claim

and not file it at that time, and then, upon the expiration of the 120-day judicial appeal period

without an NOA's having been filed, file the CUE claim, or, if an NOA is filed within that appeal

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period, then, upon the conclusion of court action, decide whether filing the motion at that time would

be consistent with §§ 20.1400(a) and 20.1400(b). See Felton v. Brown, 7 Vet.App. 276, 279 (1994)

(treating prematurely submitted EAJA application as having been filed immediately following entry

of final judgment (citing Stillwell v. Brown, 6 Vet.App. 291, 300 (1994))). In that regard, we note

that § 20.1400(b) appears to permit a CUE claim to be properly filed after the completion of judicial

review if that claim is brought as to a matter that was not the subject of such judicial review. See

DAV v. Gober, 234 F.3d at 694 (concluding that § 20.1401(a) "makes it possible for a claimant to

bring a separate CUE claim with respect to each distinct claim addressed in a Board decision"); cf.

38 C.F.R. §§ 20.1400(b)(1), 20.1401(a).

V. Conclusion

On consideration of the foregoing, the Court holds that a CUE claim may not be filed as to

a matter that is still appealable to this Court, or is pending on appeal here or at a higher Court.

Accordingly, the Court (1) vacates the April 26, 2004, BVA decision denying the CUE claim and

remands the matter to the Board for it to hold the CUE claim in abeyance in accordance with the

construction of § 20.1410 set forth above, and (2) dismisses as moot the Secretary's motion to

dismiss the appeal. The Court notes that the appellant's direct appeal case, No. 04-1057, remains

pending before the Court for disposition.

VACATED AND REMANDED.

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