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Gomez v. McDonald

03/11/2016

Gomez v. McDonald, docket no. 14-2751 (per curiam order) (Nov. 19, 2015)
TIMELINESS OF NOTICE OF APPEAL TO CAVC
HELD: A written expression of disagreement with a Board decision that is submitted to the Board – and that the Board determines is not a motion to revise based on clear and unmistakable error (CUE) – will be treated as a potential motion of reconsideration and will abate the finality of the underlying Board decision until VA determines the status of the document and notifies the veteran of that determination.

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    On June 18, 2013, the Board denied the veteran’s claim for an increased rating. Three weeks later, the veteran (pro se at the time) submitted a motion to the Board titled “Motion for Revision of Board June 18, 2013 Decision pursuant to Subpart-O Section 20.1400 Rule 1400 (Rule A&B) Inextricably Intertwined.” Over a year later, the veteran filed a Notice of Appeal (NOA) with the Court, explaining that his NOA was not timely because the Board never replied to his “Motion for Reconsideration.”

    The Court ordered the Secretary to file a preliminary record and explain the status of the veteran’s motion. The Secretary responded that the Board received the veteran’s motion, but that it had been misdated and incorrectly forwarded to the RO by the Board’s mailroom staff. The RO took no action on the submission. The Secretary added that the veteran’s submission was a motion to revise based on CUE, and that such motions “may not also be considered motions for reconsideration,” citing 38 C.F.R. § 20.1404(e). The Secretary thus asserted that the Board never received a motion for reconsideration.

    The Court then ordered the veteran to show cause why the appeal should not be dismissed for lack of timeliness. The veteran asserted that his submission was a motion for reconsideration that the Board failed to act on. The Court submitted this case to a panel to address the issue of whether the veteran’s “July 2013 motion abated the finality of the June 2013 Board decision for the purpose of timely filing an NOA.”

    Both parties asserted that the submission was indeed a “written expression of disagreement” with the Board decision. However, the Secretary argued that the Court should dismiss the present appeal pending the Board’s decision on the motion for reconsideration. Alternatively, the Secretary asked the Court to deem the NOA timely “under an equitable tolling analysis.”

    The veteran, now represented by counsel, urged the Court to deny the Secretary’s motion to dismiss, arguing that his July 2013 motion abated the finality of the Board decision and that his “late” NOA became effective when the Board determined that his July 2013 submission was not a motion for reconsideration. In the alternative, the veteran argued that if the Court determines that his submission was a motion for reconsideration, the Court should order the Secretary to act on that motion within 30 days or accept his NOA as timely under an equitable tolling analysis.

    The Court first discussed its holding in Ratliff v. Shinseki, 26 Vet.App. 356 (2013), in which it determined that a written disagreement with a Board decision that is submitted to the RO during the 120-day period to file an NOA will abate the finality of that Board decision until (1) the Secretary determines that the submission is an NOA and returns it to the veteran with information on how to file it with the Court or forwards it to the Court and notifies the veteran of this action; (2) the Board Chairman determines whether or not the document is considered a Motion for Reconsideration and notifies the veteran of its determination; or (3) the veteran files an NOA with the Court, and the Court becomes aware of the prior submission to the Board and determines that the submission was a misfiled NOA.

    The Court noted that both parties characterized the veteran’s July 2013 submission as a “written expression of disagreement” and found that there was no reason to reject this characterization. The Court pointed out that 38 C.F.R. § 20.1404(e) “provides that a Board motion for reconsideration will not be considered a CUE motion,” not the other way around, as the Secretary had asserted. The Court noted that Ratliff appears to be limited to submissions to the RO, but also recognized the courts’ consistent acknowledgement of “VA as one entity for pleading purposes.” Thus, the Court extended the holding of Ratliff to “written expressions of disagreement with a Board decision filed at the Board.”

    The Court further determined that this decision does not conflict with May v. Nicholson, 19 Vet.App. 310, 317 (2005), “which requires, assuming a timely NOA to the Court is filed, that a CUE motion received by the Board within the Court’s 120-day appeal period be held until judicial proceedings are complete.” The Court determined that May did not apply in this case because it accepted the parties’ characterization of the submission as a “written expression of disagreement” (i.e., “a potential motion for reconsideration as per Ratliff”). The Court did not resolve the question of whether a motion to revise based on CUE would abate the finality of the underlying Board decision.

    Judge Kasold dissented, asserting that the veteran’s submission was clearly a motion for revision and not a motion for reconsideration – and that the question before the Court should be whether a motion for revision filed within the 120-day appeal period abates the finality of the Board decision. Judge Kasold pointed out that May implicitly holds that filing a motion for revision does not abate finality and that this holding can only be overturned by the en banc court. Judge Kasold added that Ratliff only applies to submissions to the RO and would not extend its holding to submissions to the Board.  

Category: Veterans’ Law