What Is My Next Step?

[foreveryoung]

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

[Wings]

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

[Wings]

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

[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.