Brown v. West

13 Vet. App. 88, 1999 U.S. Vet. App. LEXIS 1114, 1999 WL 813837
United States Court of Appeals for Veterans Claims·Decided October 13, 1999·No. No. 98-1777·Published·Cited by 5 cases

Opinion

NEBEKER, Chief Judge:

On September 23, 1998, the appellant filed his Notice of Appeal (NOA) from a May 18, 1998, Board of Veterans’ Appeals (Board or BVA) decision. The Secretary [89] moved to dismiss the appeal because the appellant’s NOA was received by the Court 128 days after the BVA mailed its decision. The Court dismissed the appeal in a single-judge order of February 18, 1999, for lack of jurisdiction. Pursuant to Rule 35(b) of the Court’s Rules of Practice and Procedure, on March 11, 1999, the appellant filed a motion for a panel decision which the Court now grants. The issue is whether the veteran’s letter to the Chairman of the BVA, within the 120-day NOA period, tolled the running of that period so that the NOA, filed 128 days after the Board’s decision, was timely. In determining our jurisdiction, we look to that letter to determine whether it was a request for reconsideration, or should have been so treated by the Chairman. We hold that the letter did not toll the running of the NOA period because it was not a request for reconsideration or the functional equivalent of one. Accordingly, the Secretary’s motion to dismiss will be granted.

Not surprisingly, the parties take opposite views as to the letter. The appellant argues that “[t]he BVA abused its discretion by not treating Mr. Brown’s August 11, 1998, letter as a motion for reconsideration.” (Appellant’s motion at 2). Of course, the BVA had no power in the matter; reconsideration is for the Chairman to order, and generally his actions denying such requests are beyond the jurisdiction of this Court. Mayer v. Brown, 37 F.3d 618 (Fed.Cir.1994).

The question whether we can decide what effect the August 1998 letter had on the finality of the Board’s decision has been decided by Blackburn v. Brown, 8 Vet.App. 97, 101 (1995). We, however, decline the invitation by the Secretary and the veteran to apply an abuse of discretion standard to the Chairman’s determination that the letter did or did not toll the NOA period. To do so would be a review of the Chairman’s action, which Mayer precludes. We will, thus, look to that letter and make our own decision as to its effect on the tolling question. First, however, we must examine the requirements of a motion for reconsideration to determine whether the appellant’s August 1998 letter satisfies those requirements.

The substantive requirements for a motion for reconsideration of a BVA decision, found at 38 C.F.R. §§ 20.1000-1003, are in pertinent part:

[A motion for reconsideration] must ... set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable [Board] decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion.

38 C.F.R. § 20.1001(a). Furthermore, the Court notes that it is VA’s practice to attach a copy of VA Form 4597 to their decisions when they are mailed to a veteran. VA Form 4597 provides notice of the administrative and appellate rights available to a veteran pursuant to a Board decision and states in the paragraph labeled “Motion for Reconsideration”:

[The appellant] can file a “motion” asking the BVA to reconsider its decision by writing a letter to the BVA showing why [the appellant] believe[s] that the BVA committed an obvious error of fact or law in its decision in your appeal, or showing that new and material military service records have been discovered that are applicable to your appeal. If the BVA decided more than one issue, be sure to tell us which issues you want reconsidered. Address your letter to: Director, Administrative Service (014), Board of Veterans’ Appeals.... There is no time limit for filing a motion for reconsideration.

VA Form 4597, ¶ (1). VA Form 4579 provides a more understandable interpreta[90] tion of the requirements of a motion for reconsideration.

Duplicates of the Board decision before the Court in this appeal do not reflect the inclusion of a copy of VA Form 4579. However, in a sworn statement, the Vice Chairman of the BVA, Richard B. Stande-fer, declared that “[attached to the copy of the Board’s decision mailed to [Mr. Brown] was a copy of VA Form 4597, which provides notice of the various administrative and appellate rights options available in the event an appellant is not satisfied with the Board’s decision.”

The appellant’s August 1998 letter stated in pertinent part: “It is my intent and is further requested that this decision be appealed [sic] in the appropriate manner and that a hearing be scheduled in which I may appear and present personal testimony and additional evidentiary material.” He also sought information “outlining my rights and responsibilities related to this process.” (Exhibit 1 attached to the Secretary’s January 25, 1999, response to the Court’s January 13, 1999, order.) The letter made no mention of reconsideration.

The August 1998 letter did not comport with the requirement that it “set forth clearly and specifically the alleged obvious error, or errors, of facts or law,” as required by 38 C.F.R. § 20.1001(a), nor did it reveal “why [Mr. Brown] believe[ed] that the BVA committed an obvious error of fact or law in its decision ... or show[ ] that new and material military service records [had] been discovered that [were] applicable to [Mr. Brown’s] appeal” per VA Form 4597.

Furthermore, the Court notes that the appellant had appealed three separate issues to the Board. These include: (1) entitlement to service connection for a left ankle condition; (2) the question whether new and material evidence had been received sufficient to reopen an administrative decision addressing the appellant’s character of discharge during the period from June 11, 1981, to June 11, 1985; and, (3) entitlement to service connection for post traumatic stress syndrome (PTSD). See Marvin D. Brown, BVA 95-33 645, at 1 (May 18, 1998). Again, the August letter did not comport with the requirement that a motion for reconsideration must “identify the specific issue, or issues, to which the motion pertains,” as required by 38 C.F.R. § 20.1001(a), nor did it “tell [the Board] which issues [Mr. Brown] want[ed] reconsidered” per VA Form 4597. Thus, the August 1998 letter does not satisfy the most basic requirements of a motion for reconsideration.

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Brown v. West, 13 Vet. App. 88, 1999 U.S. Vet. App. LEXIS 1114, 1999 WL 813837 (Cal. 1999).

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