UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 03-981

JOHN R. GALLAGHER, APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before FARLEY, IVERS, and STEINBERG, Judges.

O R D E R

On September 26, 2003, in a single-judge order, the Court dismissed Mr. Gallagher's appeal

of the February 14, 2003, denial of reconsideration of an August 16, 1985, decision of the Board of

Veterans' Appeals (BVA or Board) for lack of jurisdiction. On October 16, 2003, the appellant,

through counsel, filed a motion for reconsideration or, in the alternative, for a panel decision.

Upon consideration of the foregoing, and the parties' prior pleadings, it is

ORDERED, by the single judge, that the motion for reconsideration is denied. It is

ORDERED, by the panel, that the motion for a panel decision is denied.

DATED: December 30, 2003 PER CURIAM.

STEINBERG, Judge, dissenting: Based on the following three reasons, I voted to grant the

appellant's motion for a panel decision: (1) The single-judge order issued on September 26, 2003,

did not address the appellant's principal argument that on June 24, 2002, he had filed a motion for

revision based on clear and unmistakable error (CUE) (hereinafter motion for CUE revision) and not

a motion for Board of Veterans' Appeals (BVA or Board) reconsideration (August 21, 2003,

Response (Aug. Resp.) at 2-3; September 22, 2003, Response (Sept. Resp.) at 2-3); (2) the BVA

Deputy Vice Chairman's mischaracterization of the appellant's motion forCUE revision as a motion

for reconsideration (February 14, 2003, Letter (Letter) at 1-2) insulated an otherwise reviewable

matter from judicial review; and (3) the appellant was unfairly prejudiced by the BVA Deputy Vice

Chairman's actions.

 As a starting point, I agree with the determination in the Court's September 26, 2003, order

that the appellant's Notice of Appeal (NOA) cannot, under Mayer v. Brown, give this Court

jurisdiction to review the BVA Deputy Vice Chairman's February 14, 2003, letter here on direct

appeal as a denial of a motion for reconsideration of a 1985 BVA decision. Mayer, 37 F.3d 618,
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619-20 (Fed. Cir. 1994) (concluding that Court may review decisions by (or on behalf of) BVA

Chairman under 38 U.S.C. § 7261 only "where it already has jurisdiction by virtue of a timely appeal

from a final board decision" because section 7261 "does not independently grant jurisdiction over

such actions"). However, I strongly believe that the following matters also need to be addressed.

First, the appellant had a right to have the Court address his argument, as presented in his August 21,

2003, response to the Secretary's July 30, 2003, motion to dismiss and his September 22, 2003,

response to the Court's August 22, 2003, show-cause order, that he never filed a motion for

reconsideration. Aug. Resp. at 2-3; Sept. Resp. at 2-3. Neither the Court's September 2003 order

nor the Court's decision here regarding the appellant's October 16, 2003, motion for reconsideration

or alternative motion for a panel decision addressed this issue that is absolutely fundamental to this

case.

Second, the Board mischaracterized the appellant's June 24, 2002, "Motion for Revision of

Decisions Based On [(CUE)]" as a motion for reconsideration when, in fact and in law, it was not

one: Not only is it styled as a motion for CUE revision, but it is expressly filed "pursuant to

[38 C.F.R. §§] 20.1404 [and] . . . 20.1403 [(2002)]" under "Subpart O-Revision of Decision on

Grounds of [CUE]" and specifically refers to CUE at least eight times within the course of the

11-page motion. The appellant states once in the motion that he "requests reconsideration" of the

August 1985 BVA decision (Motion (Mot.) at 1), but the words "motion for reconsideration" appear

nowhere in his motion, see Mot. at 1-11, and the motion contains no reference to Department of

Veterans Affairs (VA) regulations under "Subpart K-Reconsideration" in part 20, title 38, of the

Code of Federal Regulations, see Mot. at 1-11. If the Board had found any ambiguity in the motion

as to its classification (and I find no reasonable ambiguity in it), surely the Board had an obligation

to resolve that ambiguity in the veteran's favor as a motion for CUE revision, see 38 U.S.C.

§ 5107(b) ("[w]hen there is an approximate balance of positive and negative evidence regarding any

issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to

the claimant"); however, neither the Board in referring the matter to the BVA DeputyVice Chairman

nor the Deputy Vice Chairman in his February 2003 letter addressed such an ambiguity or section

5107(b). 

Third, had the Board properly proceeded with the motion for CUE revision under 38 U.S.C.

§ 7111, its decision would be subject to judicial review, see Jordan v. Principi, 17 Vet.App. 261,

266 (2003) (stating that "[p]ursuant to section 7111, this Court has jurisdiction to review a BVA

decision that considered a claim asserting CUE in a previous BVA decision if that claim was

pending on or after November 21, 1997"), whereas the Deputy Vice Chairman's February 2003

action is not reviewable as a denial of reconsideration, see Mayer, supra. In the opinion for a

unanimous en banc Court in Smith (George) v. Brown, Judge Ivers wrote the following regarding

an analogous use of BVA reconsideration to defeat judicial review in this Court: 

Moreover, to accept the Secretary's interpretation of [Veterans'

Judicial Review Act] § 402 and section 7103 [of title 38, U.S. Code,]

would cause this Court's jurisdiction to turn on the decisions of the

Chairman and the BVA. Cf. C.R. Bard, Inc. v. Schwartz, 716 F.2d
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874, 877-78 (Fed. Cir. 1983) (Federal Circuit holds that, as arbiter of

its own jurisdiction, it must have the power to decide whether lower

court has jurisdiction and to decide that question independent of

conclusion reached by that lower court). The result of such an

outcome would allow our jurisdiction to "'float in the air' to be seized

by [the lower] tribunal at any time." Cerullo [v. Derwinski],

1 Vet.App. [195,] 197 [(1991)] (quoting Cochran v. Birkel, 651 F.2d

1219, 1222 (6th Cir. 1981) (quoting Ruby v. Secretary of the Navy,

365 F.2d 385, 388-89 (9th Cir. 1966) (en banc), cert. denied,

386 U.S. 1011 (1967))). The BVA Chairman could otherwise defeat

the right to judicial review at a critical juncture in a case by ordering

reconsideration of a prior decision which is beyond the reach of that

right.

 

Smith (George), 8 Vet.App. 546, 552 (1996) (en banc). The above reasoning from Smith (George)

applies fully to the instant situation, and I believe that the Court's September 2003 order compounds

the error of the BVA Deputy Vice Chairman by ignoring the appellant's contention, which is not only

entitled to the Court's consideration but is also clearly correct, that he never filed a motion for BVA

reconsideration. 

I see at least two alternatives to the Court's treating this case as an appeal of the

February 2003 DeputyVice Chairman's letter that construed the appellant's motion for CUE revision

as a motion for BVA reconsideration, and dismissing it under Mayer, supra. The Court, either in

denying a panel decision, or, as I would prefer, in granting one, could have noted, analogously to the

action taken in Tablazon v. Brown, that the motion for CUE revision was misconstrued as a motion

for reconsideration, that the motion for CUE revision remains pending before the Board, and that the

Court expects it to be adjudicated expeditiously in accordance with its June 24, 2002, place in line.

Tablazon, 8 Vet.App. 359, 361 (1995) (concluding that appellant's claims were "still open" (and thus

not subject to Court review) because "BVA erroneously treated that rating decision as final and

required new and material evidence to reopen the appellant's claim of entitlement to service

connection for osteoarthritis and/or gouty arthritis"). A second alternative would be for the Court

to issue a panel order (1) construing the NOA here as including a petition for extraordinary relief in

the nature of a writ of mandamus to bring about a reviewable Board decision on the appellant's

motion for CUE revision and (2) directing the Secretary to file an answer. The panel, however,

chose not to pursue these alternative approaches.

Finally, the February 2003 BVA Deputy Vice Chairman's letter noted that the appellant had

raised a CUE argument and stated: "The motion for review based on CUE in a Board's decision is

different from a motion for reconsideration." Letter at 2. The Deputy Vice Chairman then

determined (1) that under § 3.343 "recent" VA examination reports and medical records had

demonstrated "'some improvement'" and (2) that the Board had "addressed the appropriate rating

reduction and considered the reasonable doubt doctrine". Ibid.; see 38 C.F.R. § 3.343 (2003). This

conclusion lacks an adequate statement of reasons or bases and has been insulated from judicial
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review as part of the BVA Deputy Vice Chairman's letter that purported to be deciding a motion for

BVA reconsideration. Furthermore, pursuant to § 20.1405(d), a motion for CUE revision is to be

decided by the Board and not by the BVA Deputy Vice Chairman. 38 C.F.R. § 20.1405(d) (2003).

Although I recognize that the appellant may file with the Board another motion for CUE

revision as to the 1985 BVA decision, I believe (1) that it would be unfair for him to have to lose the

16 months that have passed since he first filed his motion for CUE revision – because he would have

to go to the back of the line and start the CUE process over again – and (2) that the Court should,

authoritatively in a precedential action, reject the BVA Deputy Vice Chairman's arbitrary

misconstruction of a very clear and explicit motion for CUE revision as a motion for BVA

reconsideration. The unfair and unfortunate effect of this mischaracterization, sustained by the

Court, has been the denial to the appellant of the availability of judicial review of a section 7111

Board decision on a CUE claim. 38 U.S.C. § 7111; see Smith (George) and Tablazon, both supra.