Citation Nr: 1333078	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  05-18 003A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Whether there was clear and unmistakable error (CUE) in the October 7, 1985, Board of Veterans' Appeals (Board) decision that denied service connection for sickle-cell thalassemia.  


REPRESENTATION

Moving party represented by:   Barbara J. Cook, Attorney


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel



INTRODUCTION

The moving party served on active duty from July 1981 to August 1984.  

By an October 7, 1985 decision, the Board denied service connection for sickle-cell thalassemia.  The moving party submitted a motion for revision of the Board's October 1985 decision on the basis of CUE in February 2001.  In December 2001 the Board denied the motion to revise the October 1985 Board decision.  The moving party appealed the denial to the U. S. Court of Appeals for Veterans Claims (Court).  The appeal was dismissed by the Court in June 2005 because the moving party raised arguments before the Court which were not previously raised before the Board.  

The movant filed a second CUE motion in June 2005.  The Board denied this motion in July 2009.  The movant appealed the July 2009 Board decision to the Court and in a July 2010 Order, the Court granted the parties' Joint Motion for Remand and vacated and remanded the July 2009 decision.  In a September 2011 decision, the Board found that the October 1985 Board decision was not clearly and unmistakably erroneous.  

The movant appealed the September 2011 decision to the Court and in an April 2013 Memorandum Decision, the Court vacated the Board decision and dismissed the appeal.  


FINDINGS OF FACT

1. In an October 1985 decision, the Board denied the moving party's claim for service connection for sickle-cell thalassemia.  

2. In February 2001, the moving party filed a motion for revision of the October 1985 Board decision on the basis that it contained CUE and the motion was denied in a December 2001 Board decision. 

3. In June 2005, the moving party again asserted CUE in the October 1985 Board decision and the motion was denied in a July 2009 Board decision which was subsequently vacated and remanded by the Court.  

4. In a September 2011 decision, the Board denied the moving party's June 2005 motion for revision of the October 1985 Board decision.  

5. In an April 2013 Memorandum Decision, the Court vacated the September 2011 Board decision and dismissed the moving party's appeal.  


CONCLUSION OF LAW

The motion to revise the October 7, 1985 Board decision denying service connection for sickle-cell thalassemia based upon CUE is dismissed.  38 U.S.C.A. § 7111 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1409(c) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In Hillyard v. Shinseki, 24 Vet. App. 343, 349-50 (2011), the Court recognized that the statutory history of CUE in VA decisions evidenced different treatment of RO and Board decisions.  Under 38 C.F.R. § 20.1409(c), the Board's regulations specify that a claimant has only one opportunity to challenge a Board decision on the basis of CUE.  In other words, once the Board adjudicates whether a prior Board decision is the product of CUE, a claimant cannot bring another motion to revise that decision, even if the theory of CUE is different from the theory adjudicated in the initial motion for revision.  See Hillyard, 24 Vet. App. at 354.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has affirmed that a claimant is allowed only one request for revision based on CUE for each Board decision, even if a claimant's second request for revision based on CUE attempts to raise a different theory of CUE.  Hillyard v. Shinseki, 695 F.3d 1257, 1258 (2012).  

In its April 2013 Memorandum Decision, the Court found that the moving party had filed a second CUE challenge to the October 1985 Board decision and, as a result, it vacated the September 2011 Board decision and dismissed the Veteran's appeal under 38 C.F.R. § 20.1409(c) and Hillyard.  Therefore, the Board shall also dismiss this appeal.  


ORDER

The motion to revise the October 7, 1985 Board decision on the basis of CUE is dismissed.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs