Can a reconsideration of a CAVC Clerk's Mandate closing appeal be obtained?

[Lemuel]

What are the chances that the CAVC will grant my Motion for reconsideration of the Clerk's Order closing my Appeal in a Joint Motion for Partial Remand (JMPR)?

Copy and paste from my motion after requesting my attorney be removed.

 

Vet App. No. 23-1587

 

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

 

LEMUEL 

Petitioner, in Pro Se

 

v.

 

Denis R. McDonough

Secretary of Veterans Affairs, Respondent.

 

November 2, 2023

 

MOTION TO RECONSIDER 10/26/2023 MANDATE

 

I, Lemuel C Bray, petition the court to reconsider the 10/26/2023 Mandate.  I have petitioned the court to remove Mr. Steele as my representative because he is unwilling to assist in getting the court’s order, which he says is “boiler plate” and will have no affect on my legacy appeal at the BVA changed so that I have no worry of being limited to the issues decided in the BVA’s erroneous AMA Decision.

I read the order as locking me into the AMA Decision and only able to address the specific issues stated in the remand and causing me to drop all issues raised and evidence presented that was not considered by the BVA in its AMA Decision.

I petition the court to vacate fully the AMA Decision and hold that I had not relinquished my Legacy Appeal including my brief and motions presented per the BASES FOR REMAND in the JMPR of 10/20/2023 and that there be no “partial” in the remand order limiting what I can bring before the BVA.

That the BVA must address the “facts” as stated in my brief and motions as well as the specific references I have made supporting what I claim as facts.  If the BVA finds evidence of record countering my references that overweigh my stated facts, the BVA must so state and provide the evidence of record countering my references.

 

On October 20, 2023, I sent the following email to Mr. Steele:

 

“Re: Rule 33 Memo

From Lem Bray <Email Address Redacted>

To Brandon Steele<Email Address Redacted>

Date Friday, October 20th, 2023 at 7:52 AM

We are good with it as long as no issues are closed. Total remand because the BVA decision did not consider the brief and respond to the motions including the motion to allow an alternative to a hearing as opposed to slamming into the AMA.

LEMUEL C BRAY

2833 Main Street

Torrington, WY 82240

307 316 8568”

 

I have a SC TBI with “off days” in which I do not function mentally well.  The proposed motion was slipped by me and did not get the BVA AMA Decision fully vacated with remand having the effect of closing my Legacy Appeal briefs and motions without consideration of the issues therein as I read the order. As I read the remand the “AMA Decision” that ignored my briefs and motions will stand and be unappealable. Only those issues addressed in the BVA AMA are addressable and the remand will not cover issues raised in my briefs and motions that were not addressed in my BVA Legacy Appeal.

         I am, therefore, submitting a request for reconsideration for the 11/29/2023 BVA AMA decision to be fully vacated and remanded in Legacy Appeal based upon the “BASES FOR REMAND” in JMPR that had the effect of converting my appeal of the erroneous converting my Legacy Appeal to an AMA decision, with the failure to provide the Legacy Appeal hearing and Decision.

         Mr. Steele still argues that the “order is boiler plate” and nothing needs to be done.  A clear reading of the order indicates otherwise.  My argument is that Mr. Steele apparently did not read my brief and motions and include anything in the issues to be remanded in Legacy Appeal that were not in the AMA Decision.  He failed to research and understand the my reasoning.  I recognize that can be difficult given my TBI residuals but he needs to learn to deal with the likes of me and address my issues as I state them or convince me in “law” that they are not addressable.

         My previous attempts to appeal decisions did not fully understand the BVA is the finder of fact and erroneous statements of fact by the BVA cannot be addressed in appeal without a showing of “arbitrary capriciousness” such as the way the BVA slammed me into AMA and ignored my brief and motions.

 

/S/LEMUEL C. BRAY

 

 

 

 

[Dustoff1970]

You may have to appeal to the higher Federal Circuit Court of Appeals in D.C. if you believe that you have a solid lot of evidence to support your case and most importantly you will have to list the actual VA laws and regulations that the CAVC court failed to address or misinterpreted.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

[Lemuel]

14 hours ago, broncovet said:

I hate to sound like a nay sayer, but I have never heard of a "motion for reconsideration" at the CAVC level.  

If you have a JMR (Joint motion for remand), this suggests both parties agree to the remand. (That is why its called a "joint" motion).   That is, your attorney and the attorney's which represent the VA, are in agreement.  

If you/your attorney agreed to the terms of the JMR, you may not be able to "walk that back", that is, undo the JMR.  

I had a JMR.  My attorney contacted me, and explained "that the attorneys representing VA" had consented to the remand, with the terms outlined in the JMR.  

I had a choice to continue with my claim, hoping the judge would grant "more" than what the attorneys who represent VA offered, or to accept the remand.  Also, on the table was a negotiation of altering the terms/wording of the JMR.  

I signed the JMR, after I had negotiated for, and gotten, the terms of the remand which I had asked for. (throught my attorney). 

It is a JMPR not a JMR.  Meaning it cuts issues out of the as dismissed closing them.  That is the issue.  I did not sign the JMPR.  If I had gotten a JMR, which would have been for a Legacy Appeal I would have signed it.

I did not agree to the terms.  My terms were stated in the 10/20/23 email to the attorney which is copied in my motion for reconsideration.  We are in new territory.   The issue is, that during COVID, I was slammed into AMA from a Legacy Appeal based on a motion in response to an offer of AMA which ended up ignoring my brief and motions to the BVA.  Not acceptable to me or the Order that would have the same affect addressing only two issues in the remand and ignoring my 38 CFR 20.1000 Motions for reopening of previous decisions for stated reasons.

You are right to be a "nay sayer".  Two attorneys have told me the same thing.  All I have going for me is this issue has never been decided before because it has never happened before.  The AMA has only been here since 2017 and all of the citations sent to me by the attorneys pre date 2017, apply to full JMR and not a JMPR which is apparently a new thing also.

Did your JMR include denials of issues?  My JMPR denies all issues and except the two listed and states all other issues cannot be appealed.

I have the issue of an 11/26/1994 response to a 05/26/1994 SOC that was never processed and even denied to exist in closing the appeal to the BVA in the record in a letter response to the VAOIG by the Director of Denver VARO that made a next of friend claim (allowed at the time) for all veterans who suffered from TBI but were not examined or diagnosed with TBI as well as all of the p. falciparum malaria victims that appeared to be suffering from organic brain syndromes, both of which had minimalized NARRATIVE SUMMARY of their in patient treatment.  The p. falciparum malaria victims NARRATIVE SUMMARY being the worst as only addressing their rehabilitation portion of the brain damaging disease and ignoring the acute phase of the inpatient treatment.

For me, with my TDIU being granted from 1985, this order has little meaning and if it was not for the paragraph above I would drop it in a heartbeat.

[Lemuel]

11 hours ago, Dustoff1970 said:

You may have to appeal to the higher Federal Circuit Court of Appeals in D.C. if you believe that you have a solid lot of evidence to support your case and most importantly you will have to list the actual VA laws and regulations that the CAVC court failed to address or misinterpreted.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Thanks for your input.

Expect to have to do that if a Judge does not redo the Clerk's Order and Mandate on my motion to reconsider (and vacate the clerk's order).  One the Clerk does not have the authority to do the order unless it is accepted by the Appellant.  So no signature on my part other than the email included in the motion, it takes creative reading to believe that I accepted the JMPR and Order as written.  Also the JMPR lists citations in the BASES FOR REMAND.  The bases for remand calls for a full vacatur but the preceding part only lists two issues which are copied in the "boiler plate" (according to the attorneys) clerk's order.  I cannot be certain the order and mandate will not be binding, because the JMPR only ask for two issues to be remanded instead of a full vacatur.

Which is the original problem with the BVA AMA Decision.  It takes creative reading to of my motion to do the hearing by email and my pleadings  with responses to the Judges questions about my pleadings as an agreement to drop my pleading and let the Judge decide based on the evidence of record at the time of my appeal and my NOA.

[broncovet]

This is a great discussion to have with your attorney, as he has read your file and I have not.  

Your attorney, with your POA has some discrection on responding in your behalf.  IDK if he agreed to your JMR or JPMR.  

If the BVA addresses "issue 1" but does not decide on other issues, the other issues are deemed denied.  

No, I dont like it either.  It flys in the face of 38 cfr 3.103.  

In relevant part, 38 cfr 3.103 says, 

Quote

a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation

It was the CAVC that penned the term "deemed denial".  Perhaps your attorney is interested in persuing the deemed denial of other issues.  There have been several upgrades on deemed denials, the most recent I recall suggested that the Veteran needed to know that his claim had been denied, but that is my lay interpretation, and not, therefore, competent.  

    It sounds like it boils down to whether or not you trust the attorney who represents you.  If you trust his or her judgement, then let them do their job, and wait for the outcome.  Remember, they, too, have a dog in the fight.  

    On the other hand, if you do not trust your attorney's judgement on handling your case, then you can decide whether or not to change attorneys.  Other attorney's are often very reluctant to accept your POA when another attorney worked on it first.  They may have to share the fee with him/her, and that can get into a cat fight, also.  

     Unless there is a compelling reason, I dont recommend changing attorneys.  Instead, you hired them, and you should trust them.  It reminds me of the NFL.  The owner hires a coach.  If the coach performs poorly, he decides on whether or not, or how long to give him more chances.  

    The document you posted suggests "someone" agreed to the JMPR.  

     It also states the other issues were dismissed.  While Im not a competent attorney, my lay opinion is that it means issues not addressed by the JPMR, have been affirmed.  (This means the CAVC agrees with the board's decision on those issues).  

     While this is not the outcome you probably wanted, I had something similar and simply attacked the issues "another way".  Im my case, the effective date for depression was finalized, (that is, I lost)  but, I went for tdiu via an informal claim, and eventually won what I wanted, or even more, that way.  Remember, there is always the option of resubmitting your claim with new relevant evidence, via 38 cfr 3.156, if you can come up with new evidence.  This may be what your attorney is doing.  I have no idea. 

   As always, you should take your attorney's advice before you even consider any of my suggestiosns,

he/she is a professional, and Im offering only my unsubstantiated lay opinion based only on your post.  

Your attorney has read your file, I have not, so his advice must be better than mine.  

[broncovet]

Still another possiblility your attorney "may" be working on (again ask him/her about this) dropping certain issues of appeals, then resubmit the claim with or without new evidence (probably with), or even come up with a new angle, such as a previous informal claim.  

   (Years ago, you did not need a claim form for increase.  If you already had some sc, you could just send em another issue, as one person pointed out, on a napkin.)

    While there are no more informal claims, those what were started before Feb. 2019, still apply.  If there is a change in regulations (aka, the VA suddenly requires a form for each claim for increase) and you filed before that change, you get the more favorable of both options.  (Sometimes rules are liberalized, in this case they were made more difficult for Veterans).  

    In the past if you told your doctor (and he wrote it down) that you are unemployed, and cant find a job, this can be construed as an informal claim for tdiu.  (for example).  The VA was then required to send you a tdiu form, but, if they did not, then you can supply the applicable information VA requires later and, maybe still get the effective date of the informal claim "provided that" you met the other criteria for eed.  

Generally, that means that, before the claim became finalized, your doctor or doctors opinined you were unable to work due to service connected conditions.  

     A claim remains pending, once submitted, until its finalized, and appeals are exhausted.  You can add new evidence to a pending claim, and still get the effective date of when you first applied.  

     A claim becomes final, after it was adjuticated by the VARO and 12 months passes "without" your filing of a NOD.  It does not become final until the appeals process is exhausted, that is, until the appeal is finalized "along with" the time lapses before you can appeal the appeal.  

    In other words, you have one year after a varo decision to appeal.  If you appeal to the board, and the board denies, you have 120 days to appeal the board decision.  

    Your attorney could be weighing appealing the cavc decision to the Federal circuit.  However, if you consented to the terms of the JPMR, that sounds like you waived your further appeal rights.  

    Again, your attorney may be doing lots of other things, some of which I suggested, and others which I have not brought up.  Rarely, and only with compeling reasons, would I ever suggest not following your attorneys advice.  

    An example may be if your attorney becomes an alcoholic and no longer works on your case.  Then, fire the attorney and make decisions on what to do.  

[Lemuel]

 

Thanks for your input Bronco. 

I hope this discussion becomes helpful through our presentation of experiences for other veterans not being caught in catch 22 situations as in accepting bad advice and then being held to it.  By first telling the attorney I disagreed with him and asking him to move to get the order changed, which he refused to do, the only way I felt I had to protect myself from letting the Clerk's order from becoming the finale "mandated decision" was to fire the attorney and submit my own motion to rewrite the order which would have become the mandate and would have required $500.00 out of pocket to appeal it to the CAFC if the reconsideration does not get the order changed in mandate.

This is a case for not following the attorney's advice.  If he is wrong, you have accepted issues that cannot be appealed per the clerk's order if you do not go through the process of appealing a clerk's order.  

Per a previous decision at the CAFC, a clerk's order is not a finale order.  In this case, it is only a finale order if I do not go through the process of appeal.  Ask for reconsideration which I believe must be done by a Judge--if the attorney is right that the clerk does not have the authority to rule.  But just as with an RO decision, there are time limits.  And then to appeal, it must either be done by the attorney as I ask him to do, or I first have to fire the attorney and then ask for reconsideration to get it before a Judge who can issue a final order.  The Mandate is a finale order.  It is on the docket but there is no document yet.  So, I believe the Juge has not seen the Clerk's order yet and my reconsideration is timely.  Once the mandate is there, I have to appeal to the CAFC on denial by the CAVC.  My attorney's boss said it was mandated already and nothing could be done.  She also backed up my attorney with the old understanding prior to this situation of having an AMA Decision made without permission of the appellant to change from Legacy Appeal.

A caution to veterans making BVA appeals.  I believe the new order of things is you have to specifically ask for a hearing in order to get a Legacy Appeal or enter new evidence such as a family member's statement or a family doctor's statement after the RO decision.

The old order still applies as to the responsibility of the BVA judge to consider the whole record, but the decisions cannot be used as citations if, like in the decisions, you did not raise the issue in a new claim or state that the issue was raised in an old claim.  In my case, seizures.  Raised in my 1974 claim for "residuals of" my head injury.  I made a mistake on signing the VA clerk's form in not insisting that he do it as it had been done on my DAV reps' submission.  Residuals of: followed by a list of the claimed items for service connection.  Now, I would advise anyone submitting a new claim, to make sure to put the words "residuals of" before any claimed item.  If you have a bad knee or a shortened leg because of an ankle fracture, which over the years affects you back you can then claim the back problem as a residual of the claimed residual of service-connected item.

My "not attorney" understanding.  Because of the previous decision of trying to appeal a clerk's decision on an incomplete RBA, I do know that the clerk's order is not finale.  I have to have the Judge's order to appeal.  But I cannot let the "mandate" get out of time before disagreeing with it, making it necessary to fire the attorney and file a motion for reconsideration.

If the attorney had some other methods of approaching the issue, he should have let me know instead of sending citations that did not apply because they were statements in losing cases and predated the AMA so were not relevant to the AMA.  The AMA allows ignoring any new evidence after the NOA (10182 form).  The CAVC has decided that we must now use the VA forms.  The citations given me by the attorney also predate that decision and the regulations requiring the use of VA forms and/or specifics in an NOA.

My first NOA in 2009, was rejected as not addressing the specific issues being appealed.  I had to rewrite the NOA, which was by letter at the time, not the 10182 form, before my BVA appeal would be certified for appeal to the BVA by VARO. 

Because of VARO's withholding of certifications of appeal, our 10182 now goes directly to the BVA so my earlier problem getting the issue of my seizures certified to the BVA on appeal has finally been resolved.  Now the problem is getting the BVA to consider the issue of seizures because of closure at the VARO level without certification to the BVA.  And now The BVA ignored the issue as being closed by VARO.  So the old citations apply because the BVA must consider the issue of seizures based on the laws and regulations at the time of first appeal when VARO left it off of the certification and I raised it at the 1990 BVA hearing but the seizures had not been confirmed on the date of the hearing but were by the date of the decision.

I have a motion to reopen that May of 1990 decision based upon my request for reconsideration after my September of 1990 confirmation of partial and complex partial seizures, which the re-opens the 1976 rating decision on my 1974 claim for residuals of my head injury.  The nexus for the seizures is in the 1969 IPTR of the head injury which was not in the record in 1987 when the rating decision was made was the object of the May 1990 BVA Decision.  I do not believe the BVA had the 1969 IPTR at the time of my hearing and their decision.  To Do: get a copy of the 1990 BVA decision record.  (if they file a copy of the record with their decision at the BVA).

All of that becomes issues which were denied by the Clerk's order limiting the issues to the order's stated issues in remand.