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BVA Motion to Revise


Berta
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https://www.index.va.gov/search/va/bva_search.jsp?QT=Motion+to+Revise&EW=&AT=&ET=&RPP=10&DB=2020&DB=2019&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

Page 1 of 78453 results — searched 1228302  (There are 310 from 2019 andthe first quarter if 2020)
Query: (motion to revise)
They all contain the regulations for a Motion to Revise.
I recall they still might have those regulations on the back of the I-9.
Motion to Revise has nothing to do with a VA Regional Office Decision, that a NOD has already been filed on.
 
Motion to Revise is only appropriate when the claimant believe the BVA has committed a CUE.
 
Some BVA Motions to Revise end with:

"CONCLUSION OF LAW The May 2018 Board decision is final, and the criteria to reverse or revise the decision based on CUE is dismissed without prejudice to refiling. 38 U.S.C. § 7111, 38 C.F.R. §§ 20.1400, 20.1403, 20.1404."

That supports the past advice here that CUE is NOT a one shot deal.

BVA posts that statement when the veteran has not perfected their CUE as to identifying a legal error the BVA made, to their detriment.

Interesting case- The veteran however did well in some respects:

Indeed, the moving party’s December 2018 motion for revision due to CUE refers to multiple errors (discussed above) made by the Board, but it fails to articulate how those errors concern the Board’s denial of the increased rating for PTSD disability.  Because the moving party’s pleadings do not specifically identify any alleged error or errors in the Board’s May 2018 decision as to either facts or law, the Board concludes that the moving party’s motion to reverse or revise the Board’s December 1985 decision lacks the necessary specificity as required to constitute a valid motion for revision or reversal based on CUE.

"Indeed, the moving party’s December 2018 motion for revision due to CUE refers to multiple errors (discussed above) made by the Board, but it fails to articulate how those errors concern the Board’s denial of the increased rating for PTSD disability.  Because the moving party’s pleadings do not specifically identify any alleged error or errors in the Board’s May 2018 decision as to either facts or law, the Board concludes that the moving party’s motion to reverse or revise the Board’s December 1985 decision lacks the necessary specificity as required to constitute a valid motion for revision or reversal based on CUE."

https://www.va.gov/vetapp19/files10/19177805.txt

Also the BVA made this further point on CUE: in above decision, 

"Moreover, the Board notes that the Veteran has successfully initiated an appeal as to the RO’s March 2018 rating decision that assigned an effective date of October 13, 2017 for award of TDIU and there is no final adjudication of that assigned effective date upon which to consider CUE. Consideration of whether the implicit decline of jurisdiction over issue of TDIU prior to October 13, 2017 would have resulted in an ultimately different outcome is premature at this time. In this regard, a review of the claims file shows that the RO has acknowledged receipt of the Veteran’s December 2018 notice of disagreement and action on the part of the Board is not warranted at this time. See Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009). The issue of earlier effective date for award of TDIU has been referred to the Agency of Original Jurisdiction for appropriate action."

And knocks down the One shot deal re: CUE mantra again:
"The regulations governing CUE challenges to finality of RO decisions do not limit the number of times a claimant may raise a CUE claim as to a specific RO decision.  38 U.S.C. § 5109A; 38 C.F.R. § 3.105; Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002).  In contrast, the regulation limits each claimant to one challenge to the finality of each Board decision.  Hillyard v. Shinseki, 695 F.3d 1257, 1258 (2012)."
 
I wish this veteran was a hadit member- he basically knows what he is doing just needs to follow the CUE criteria better.----and hopefully had time to file CUE against the RO, on their 2018 decision-but this decision only mentions his NOD. Apparently he had no representation, but did well on his claim at the RO level, inspite of that.
 
A BVA Motion to Revise can only be filed against a BVA decision.
 
It is not appropriate to file a Motion to Revise against a RO decision.
 
We had a fairly  recent Cue member who was told to file their CUE the wrong way . I am sure he corrected that error. I rewrote the CUE for him.He had prepared a Motion to Revise, but had a basis for CUE against a VARO. He had no BVA case or any decision from BVA to file the Motion on.
If I add "granted" to the BVA search under Motion to Revise, over 70,000 decisionspop up- because theBVA used the word granted in them, often regarding other issues the veteran had been granted.
I dont have time to find any Motions that were granted based on BVA CUE but of course there are some there, and I probably posted them here before.
As with almost everything  else at VA , Motions to Revise have specific deadlines.
A CUE however can be filed at any time- within or without of the appeal period.
 
 
 

 
 
 
Edited by Berta
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