THOMAS L. LARSON, Claimant-Appellant,
ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee
Appeal from the United States Court of Appeals for Veterans Claims in No. 11-0864, Judge Lawrence B. Hagel.
BARBARA J. COOK, of Cincinnati, Ohio, argued for claimant-appellant.
ALLISON KIDD-MILLER, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were STUART F. DELERY, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and CHRISTINA L. GREGG, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before PROST, WALLACH, and CHEN, Circuit Judges.
Prost, Circuit Judge.
Thomas L. Larson appeals from a decision of the U.S. Court of Appeals for Veterans Claims (" Veterans Court" ), which affirmed a decision of the Board of Veterans' Appeals (" Board" ) denying Mr. Larson's claim that there had been a clear and unmistakable error in his 1969 disability rating decision. For the reasons that follow, we reverse in part and remand for further consideration.
Mr. Larson is a Vietnam War veteran who suffered a gunshot wound in service. In 1969, he was granted a 40% combined disability rating. He did not appeal that decision, and it became final. Then, in 2007, Mr. Larson sought to revise that decision on the grounds of clear and unmistakable error (" CUE" ). In order to establish CUE, a claimant must demonstrate either that (1) " the correct facts, as they were known at the time, were not before the adjudicator," or (2) " the statutory or regulatory provisions extant at the time were incorrectly applied." Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)).
Mr. Larson argued that the adjudicator had misapplied the diagnostic codes in effect at the time of the 1969 decision. The Regional Office denied his claim, and the Board affirmed. In its opinion, the Board clearly identified Mr. Larson's two CUE claims, both relating to the application of the correct diagnostic codes. Then, after rejecting each of Mr. Larson's claims, the Board concluded: " the Veteran has not demonstrated that the law in effect during that time was incorrectly applied or that the correct facts, as they were known at the time, were not before the adjudicators." J.A. 33.
Mr. Larson then appealed to the Veterans Court. He initially challenged the merits of the Board's decision denying the two CUE claims he had raised before the Board. However, he later filed a motion to modify the Board's decision by deleting the phrase " or that the correct facts, as they were known at the time, were not before the adjudicators." J.A. 35. Mr. Larson was concerned that the challenged language could be interpreted as a ruling on a " correct facts" CUE claim, thereby precluding him from raising such a claim in the future. In his motion, he agreed that " if that phrase is deleted, the [Veterans Court] could otherwise affirm the Board's decision." J.A. 36.
The Veterans Court dismissed Mr. Larson's motion to modify the Board's decision as moot, noting that " Mr. Larson has exhausted his opportunity to raise further assertions of clear and unmistakable error." Larson v. Shinseki, No. 11-0864, 2013 WL 93357, at *3 (Vet. App. Jan. 9, 2013). That conclusion was based on the Veterans Court's belief that Hillyard v. Shinseki, 24 Vet. App. 343 (2011), aff'd 695 F.3d 1257 (Fed. Cir. 2012), limits a claimant to only one opportunity to raise any and all CUE allegations. The court therefore affirmed the underlying Board decision in its entirety.
Mr. Larson now appeals the Veterans Court's ruling. We have jurisdiction pursuant to 38 ...