Veterans Can Only Challenge an 'Issue' Once

By Robyn Hagan Cain on August 24, 2012 | Last updated on March 21, 2019

The Veterans Administration limits a veteran’s challenges to the disposition of a disability claim “issue.” But how is “issue” defined?

The Federal Circuit Court of Appeals considered a single legal question in this case: What does the term “issue” mean for the purpose of VA regulations related to appealability? Is it a disability claim, or is it a theory supporting a disability claim?

Joseph 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, Hillyard filed a single claim for a mental condition, which he attributed to his in-service head injury.

The VA denied his claim and the Board affirmed. Hillyard filed a request for revision alleging clear and unmistakable error (CUE) by the Board of Veterans' Appeals 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 Hillyard's request for revision and the Court of Appeals for Veterans Claims affirmed.

Hillyard later filed another request for revision, alleging CUE by the Board in failing to consider and apply statutes regarding injuries incurred in the line of duty and the presumption that veterans are of sound mind and body when they enlist, 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.

The Veterans Court concluded, based in significant part on the appellate court's decision in Disabled American Veterans v. Gober, that "issue" is synonymous with "claim." 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.

Hillyard, on the other hand, argued that "issue" in § 20.1409 corresponds to a "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.

The regulations state that, unless otherwise specified, the term "issue" means a matter upon which the Board made a final decision. While that definition is ambiguous, the VA's intent -- as explained in the notice of rulemaking for Rule 1409 -- was to allow for one CUE challenge per claim.

Deferring to the agency's reasonable interpretation of its own regulations, the Federal Circuit Court of Appeals affirmed the Board's interpretation.

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