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]

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.

asknod,

I'm sure not positive on this, but my opinion is that,

You - as the claimant,have the authority to file a motion for revision

BUT as a claimant, you do not have the authority to assign a proceeding.

The authority to assign a proceeding is reserved for the Chairman/Vice Chairman or Deputy Vice Chairman

of the board.

Again, this is only my opinion - perhaps other's will chime in.

(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)

[FormerMember]

You are right. Transitive verb + brain fart. My son is in law school and I called him, too. He finally excavated it out of WESTLAW on the internet. It's 7103 but what is odd is the BVA lady indicated the VLJ believes a single judge can revise it. 7103 says absolutely not. It would have to be a 5 judge panel legally, but who can afford to squander judicial resources so profligately? VA is in enough backlog trouble as it is. If it goes against me, I'll argue the 5 judge panel requirement up at Indiana Ave.NW. Thank you for your insight.

[1/506]

how long will it take for CUE to be finished. I started mines in June.