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What Is My Next Step?


foreveryoung

Question

Hi All

I am working on a claim for two previous final BVA decisions one from 1979 and another from 1982. My question is, should I first file an appeal with the CVA or seek a CUE? If I do file the appeal wiith the CVA first, do I mail it directly to them or do I have to go through the VA?

Thanks

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Guest Namvet6567

"I" don't believe you can file w/the CAVC because they are too old and the deadline has tolled but I'm not absolutely positive. You can file w/the RO or BVA w/the CUE. There is a deadline, from the final decision date, for filing w/the court.

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§20.1001 Rule 1001. Filing and disposition of motion for reconsideration.

(a) Application requirements. A motion for Reconsideration must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision, or decisions, to be reconsidered. It must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable Board of Veterans' Appeals decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion.

(B) Filing of motion for reconsideration. A motion for reconsideration of a prior Board of Veterans Appeals decision may be filed at any time. Such motions must be filed at the following address: Director, Management and Administration (01E), Board of Veterans Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

(c ) Disposition. The Chairman will review the sufficiency of the allegations set forth in the motion and, depending upon the decision reached, proceed as follows:

(1) Motion denied. The appellant and representative or other appropriate party will be notified if the motion is denied. The notification will include reasons why the allegations are found insufficient. This constitutes final disposition of the motion.

(2) Motion allowed. If the motion is allowed, the appellant and his or her representative, if any, will be notified. The appellant and the representative will be given a period of 60 days from the date of mailing of the letter of notification to present additional arguments or evidence. The date of mailing of the letter of notification will be presumed to be the same as the date of the letter of notification. The Chairman will assign a Reconsideration panel in accordance with §19.11 of this chapter. (Authority: 38 U.S.C. 7103, 7108)

[57 FR 4109, Feb. 3, 1992, as amended at 67 FR 16023, Apr. 4, 2002]

Edited by Wings (see edit history)
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  • HadIt.com Elder

See also (scroll down)

http://www.warms.vba.va.gov/booka.html

Subpart K - Reconsideration

20.1000 Rule 1000. When reconsideration is accorded

20.1001 Rule 1001. Filing and disposition of motion for reconsideration

20.1002 Rule 1002. [Reserved]

20.1003 Rule 1003. Hearings on reconsideration

20.1004-20.1099 [Reserved]

Subpart L - Finality

20.1100 - 20.1102 - 20.1103 Finality of decisions of the Board/ Harmless error/ Finality of determinations of the agency of original jurisdiction where appeal is not perfected

20.1101 Rule 1101. [Reserved]

20.1104 - 20.1105 - 20.1106 Finality of determinations of the agency of original jurisdiction affirmed on appeal/ New claim after promulgation of appellate decision/ Claim for death benefits by survivor-prior unfavorable decisions during veteran's lifetime

20.1107-20.1199 [Reserved]

See

§20.1000 Rule 1000. When reconsideration is accorded.

Reconsideration of an appellate decision may be accorded at any time by the Board of Veterans’ Appeals on motion by the appellant or his or her representative or on the Board’s own motion:

(a) Upon allegation of obvious error of fact or law;

(b) Upon discovery of new and material evidence in the form of relevant records or reports of the service department concerned; or

(c ) Upon allegation that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant. (Authority: 38 U.S.C. 7103, 7104)

Edited by Wings (see edit history)
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Great research Wings - now can you splain what it means to me?

OK! But first I gotta feed the kids their tater-tots and fish sticks - be right back LOL!

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38 C.F.R. § 20.1001 (a)-(b) (2001) (emphasis added).

Unlike the filing of a Notice of Appeal before the Veterans Court, the BVA sets no statute of limitations for filing a motion for reconsideration. A motion for reconsideration "may be filed at any time." Id. § 20.1001(b) (2001).

The regulation evinces a belief that any unfairness toward the VA is outweighed by the veteran's right to present his claim. In other words, all claims for benefits are instances "where the interests of justice require vindication of the plaintiff's rights." Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 428 (1965). If the veteran, with the assistance of the VA, gathers information to substantiate a claim, the veteran is entitled to receive the appropriate benefits, no matter how long it takes to substantiate the claim.

Under 38 U.S.C. § 5104, an adverse decision of the BVA must be accompanied by a notice explaining the reasons for the decision and "an explanation of the procedure for obtaining review of the decision." In Cummings v. West, 136 F.3d 1468, 1472 (Fed. Cir. 1998), overruled on other grounds, Bailey, 160 F.3d at 1368, this court held that 38 U.S.C. § 5104 "requires nothing more than . . . a general outline of the available procedures for obtaining review of a final [bVA] decision."

The Appeals Notice provided to Jaquay [the veteran] informed him of three options:

(1) filing a motion for reconsideration with the BVA;

(2) appealing the decision to the Veterans Court; or

(3) reopening the claim by submitting new and material evidence to the VARO.

The instructions for filing a motion for reconsideration provided:

You may file a motion for reconsideration of this BVA decision at the following address: Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington DC 20420. Your motion may be in the form of a letter. It should state clearly and specifically which issue or issues you want the BVA to reconsider and the specific reasons why the BVA should reconsider the issue or issues.

The instructions also explain the alternative option of filing an appeal with the Veterans Court:

You may have the right to appeal this decision to the United States Court of Veterans Appeals (the Court). You may appeal to the Court a final decision of the BVA that follows a notice of disagreement filed on or after November 18, 1988. A Notice of Appeal must be filed with the Court within 120 days from the date of mailing of the notice of the BVA decision. The date of mailing is the date that appears on the face of the BVA decision. The Court's address is: The United States Court of Veterans Appeals, 625 Indiana Avenue, NW., Suite 900, Washington DC 20004. You may obtain information about the form of the Notice of Appeal, the methods by which you may file your Notice of Appeal with the Court, the amount of any filing fee, and other matters covered by the Court's rules directly from the Court. You should also mail a copy of the Notice of Appeal to the VA General Counsel (027), 810 Vermont Avenue, NW., Washington, DC 20420. However, the VA General Counsel is not a part of the Court and filing a copy of your Notice of Appeal with the VA General Counsel or any other VA office WILL NOT protect your right of appeal.

Source:

United States Court of Appeals for the Federal Circuit

98-7051

OLIVER L. JAQUAY,

Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.

DECIDED: September 16, 2002

http://caselaw.lp.findlaw.com/scripts/getc...87051v2&exact=1

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See attached PDF

United States Court of Appeals for the Federal Circuit

98-7051

OLIVER L. JAQUAY,

Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.

DECIDED: September 16, 2002

98_7051_JAQUAY.pdf

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Guest Namvet6567

I seem to recall when COVA (now called CAVC) was instituted, only new or currently active claims could be considered. As I recall this was to prevent an overload of appeals to COVA.

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