Cue Law

[FormerMember]

In an attempt to revise a prior decision, I find no one (even the BVA) willing to go out on a limb and definitively answer this question. In 1992, BVA boards were panels of three. There were twenty of them and until 1995, all decisions were by panel rather than single judge. My Motion for Revision is coming up and I suspect a single judge is going to decide it even though the 92 decision was done with the aforementioned panel (although one was missing). The question is simple. Can a sitting VL Judge (one) overturn a 92 panel decision of three?

Now, before you cite to 38 CFR § 19.11(b), think it through. § 19.11(b) deals with Motions for Reconsideration, not Motions to Revise. Big difference:

(b) Number of Members constituting a reconsideration panel. In the case of a matter originally heard by a single Member of the Board, the case shall be referred to a panel of three Members of the Board. In the case of a matter originally heard by a panel of Members of the Board, the case shall be referred to an enlarged panel, consisting of three or more Members than the original panel. In order to obtain a majority opinion, the number of Members assigned to a reconsideration panel may be increased in successive increments of three.

I queried the BVA via IRIS and they sent me to the Atlanta VARO saying my claim was there. Atlanta booted me back to the BVA and said they were lying. The Veterans Service Compensation "technician" at the 800 number said "Huh?". A private VA attorney said sign the POA and I'll tell you. The BVA answered my IRIS query today and said "If we need any more info, we'll contact you." Any ideas? If so, predicated on what CFR §?

[carlie]

Welcome.

Have you submitted a claim for CUE ?

If yes, how does your question apply and effect your claim ?

[Berta]

My questions too-is this a CUE claim or

I assume you filed a Motion for Reconsideration at the BVA, regarding a BVA decision.

I dealt with the BVA Ombudsman in the past to track my BVA case :

BVAOmbudsman@mail.VA.Gov

or I called them at

(202)-632-4623

and the BVA fax number is FAX: 1 202 343 1889

[FormerMember]

Refer to my post <<<My Motion for Revision is coming up and I suspect a single judge is going to decide it even though the 92 decision was done with the aforementioned panel >>>>. Filing a Motion for Reconsideration is a dead end. You get one shot at it. If they decline to review, the claim can never be resurrected or appealed to the Court. Obviously I am not going to do that. I filed a Motion for Revision as in Clear and Unmistakable Error claim and I am the moving party pro se.

<<<If yes, how does your question apply and effect your claim ? >>> I felt that was fairly obvious. I want to make sure they do not waste their time and mine with a single judge adjudicating a Motion for Revision without legal authority to do so. I've searched high and low in the USC and CFRs and find the one reference to Motions for Reconsideration. A MFR is a far cry from a revision. A MFR is a petition to review an old decision. A Motion to Revise is an adversarial, collateral attack on a prior decision.

The Ebenefits site shows they are now looking at it. I had a hearing before the VLJ last April ((2011). We discussed it during the hearing about another appeal and he suggested I file the revision and he'd hear them both at the same time. It was filed May 11,2011. The revision is simple- the judges made 2 decisions medical in nature that were outcome determinative. To view the decision, see http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp92/files1/9204999.txt

Now that we have that clarified, is there anyone who might be knowledgeable on this? I'm stumped and am not getting anywhere. I'll try the Ombudsman again. I left my name and number there last week, too. Nobody returned the call. In the meantime, if either of you have any answer on the subject, I'd be interested to hear it.

[FormerMember]

Thank you, Berta. I talked with a nice lady at the BVA Ombudsman's office who didn't know the answer, but took my particulars and asked a VLJ. She kindly called me back with the information later. Problem solved.

[carlie]

In an attempt to revise a prior decision, I find no one (even the BVA) willing to go out on a limb and definitively answer this question. In 1992, BVA boards were panels of three. There were twenty of them and until 1995, all decisions were by panel rather than single judge. My Motion for Revision is coming up and I suspect a single judge is going to decide it even though the 92 decision was done with the aforementioned panel (although one was missing). The question is simple. Can a sitting VL Judge (one) overturn a 92 panel decision of three?

Now, before you cite to 38 CFR &sect; 19.11(b), think it through. &sect; 19.11(b) deals with Motions for Reconsideration, not Motions to Revise. Big difference:

(b) Number of Members constituting a reconsideration panel. In the case of a matter originally heard by a single Member of the Board, the case shall be referred to a panel of three Members of the Board. In the case of a matter originally heard by a panel of Members of the Board, the case shall be referred to an enlarged panel, consisting of three or more Members than the original panel. In order to obtain a majority opinion, the number of Members assigned to a reconsideration panel may be increased in successive increments of three.

I queried the BVA via IRIS and they sent me to the Atlanta VARO saying my claim was there. Atlanta booted me back to the BVA and said they were lying. The Veterans Service Compensation "technician" at the 800 number said "Huh?". A private VA attorney said sign the POA and I'll tell you. The BVA answered my IRIS query today and said "If we need any more info, we'll contact you." Any ideas? If so, predicated on what CFR &sect;?

I believe the following is applicable.

19.3 Assignment of proceedings.

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(a) Assignment. The Chairman may assign a proceeding instituted before the Board, including any motion, to an individual Member or to a panel of three or more Members for adjudication or other appropriate action. The Chairman may participate in a proceeding assigned to a panel of Members.(Authority: 38 U.S.C. 7102)

(b) Inability to serve. If a Member is unable to participate in the disposition of a proceeding or motion to which the Member has been assigned, the Chairman may assign the proceeding or motion to another Member or substitute another Member (in the case of a proceeding or motion assigned to a panel).(Authority: 38 U.S.C. 7101(a), 7102)

[61 FR 20448, May 7, 1996]

<a name="38:2.0.1.1.4.1.35.14" style="color: rgb(10, 68, 167); font-family: Verdana, Arial, Helvetica, sans-serif; font-size: 14px; line-height: 24px; background-color: rgb(255, 255, 255); ">§ 19.14 Delegation of authority—Appeals regulations.

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(a) The authority exercised by the Chairman of the Board of Veterans' Appeals described in §§19.3(b) and 19.12© of this part may also be exercised by the Vice Chairman of the Board.

(b) The authority exercised by the Chairman of the Board of Veterans' Appeals described in §19.11 of this part may also be exercised by the Vice Chairman of the Board and by Deputy Vice Chairmen of the Board.

(Authority: 38 U.S.C. 512(a), 7102, 7104)

[57 FR 4104, Feb. 3, 1992, as amended at 70 FR 8930, Feb. 24, 2005]

http://us-code.vlex.com/vid/sec-assignment-members-board-19233792

38 USC 7102 - Sec. 7102. Assignment of members of Board

TEXT

(a) A proceeding instituted before the Board may be assigned to an individual member of the Board or to a panel of not less than three members of the Board. A member or panel assigned a proceeding shall make a determination thereon, including any motion filed in connection therewith.

The member or panel, as the case may be, shall make a report under section 7104(d) of this title on any such determination, which report shall constitute the final disposition of the proceeding by the member or panel. (b) A proceeding may not be assigned to the Chairman as an individual member.

The Chairman may participate in a proceeding assigned to a panel or in a reconsideration assigned to a panel of members.

Amendments

1994 - Pub. L. 103-271 amended section generally, substituting present provisions for provisions authorizing Chairman to divide Board into sections of three members and to assign proceedings thereto, and provisions relating to assignment where section is composed of fewer than three members, limiting annual period of service, prohibiting more than one member to be a temporary or acting member, and relating to hearing docket and report of determination. 1991 - Pub. L. 102-40, Sec. 402(b)(1), renumbered section 4002 of this title as this section.

Subsec. (a)(2)(A)(ii). Pub. L. 102-83 substituted "Department" for "Veterans' Administration". Subsec. (a)(3). Pub. L. 102-40, Sec. 402(d)(1), substituted "7101©" for "4001©". 1984 - Subsec. (a)(1). Pub. L. 98-223, Sec. 208(d)(1), designated provision authorizing the Chairman from time to time to divide the Board into sections of three members, assign members to the Board thereto, and designated the chief thereof, as par. (1). Subsec. (a)(2). Pub. L. 98-223, Sec. 208(d)(2), designated provision relating to authority of the Chairman in the case where a section is composed of fewer than three members as a result of absence, vacancy, or inability of a member to serve as subpar. (A), and in subpar. (A) as so designated, inserted provision authorizing the Chairman to designate an employee of the Veterans' Administration to serve as an acting member of the Board on such section for a period of not to exceed 90 days, and added subpar. (B). Subsec. (a)(3). Pub. L. 98-223, Sec. 208(d)(2), added par. (3). Subsec. (b). Pub. L. 98-223, Sec. 208(d)(3), designated provision relating to the maintenance of a hearing docket and the holding of formal recorded hearings upon which a final determination will be made as subsec. (b). Pub. L. 98-223, Sec. 208©, struck out "associate" before "member" in two places.

Subsec. ©. Pub. L. 98-223, Sec. 208(d)(4), designated provision relating to the section making a determination on any proceeding or motion in connection therewith assigned to the section by the Board and making a report on such determination, which report constitutes its final disposition of the proceeding, as subsec. ©.

Section Referred To In Other Sections

This section is referred to in section 7103 of this title.

[FormerMember]

Thank you very much for that research. I saw this several months ago and promptly forgot where it was . I believe 7102 is inapplicable because of that first phrase:

"A proceeding instituted before the Board ". As I am the one instituting it, it cannot apply. 7103 would seem a good fit, but again it deals with the MFR issue rather than revision. Oddly the gal at the BVA says that a single judge can revise any decision of a prior board- even one sitting as a panel. Go figure. That's like saying a single judge decision at the CAVC could take precedence over an en banc or panel decision. I'll be happy to report back with the actual number of judges on the decision as soon as I see it. A win certainly won't be as glorious as Leroy Maclem's but it will be a windfall-sans interest. I seek justice, not money. The decision has rankled me for over twenty years.