Veteranclaims’s Blog

October 28, 2010

Hillyard v. Shinseki, Oral Arguments, CUE with BOard Decision, Definition of “Issue”

The Veterans Court just heard oral arguments in Hillyard v. Shinseki, in which there was clear confusion regarding what the definition is regarding the term “issue”. So much so that time was extended and a Bench Order was issued that each party was to submit a one sentence definition with 10 citations by 1PM this day.

This case may become pivotal in regard to CUE motions with Board decisions, as it will determine the scope and breath of CUE’s that can be brought by the veteran following Board decisions.

We did our own quick research and found the Federal Circuit’s definition of “issue” in Hamilton, we will be watching to see how the CAVC rules in this case and if it uses Hamilton.

Hamilton, 39 F.3d at 1586, 1584
“this Court in Hamilton, in specifically adopting certain definitions of “claim” and “issue” (from a VA regulation and a proposed VA regulation), defined the term “claim” as an application for VA benefits with respect to a specific “issue”, and defined the term “issue” as including “whether service connection should be granted for a particular disability”, which was the particular benefit sought in the underlying appeal to the BVA in the instant case. Hamilton, 4 Vet.App. at 536.

“defined the term “issue” as including “whether service connection should be granted for a particular disability”, with respect to a specific “issue”, as the term is used in the proposed, pending VA regulations. . . . 57 Fed. Reg. 4088, 4134 (1992 ) (proposing new 38 C.F.R. ù 20.3(k) to define “issue” generally as ” the ultimate question to be decided in determining whether or not a particular benefit sought on appeal will be granted . . . and stating that “whether service connection should be granted for a particular disability” is an example of an “issue”).)”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1733
JOSEPH C. HILLYARD,
V.
APPELLANT,
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
APPELLEE.
Before GREENE, Chief Judge, and HAGEL, and SCHOELEN, Judges.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

Joseph C. Hillyard appeals through counsel a February 8, 2008, Board of
Veterans’ Appeals (Board)decision that dismissed with prejudice his motion to revise or reverse a February 1987 Board decision that denied entitlement to VA benefits for an acquired psychiatric disorder on the grounds of clear and unmistakable error. On appeal, Mr. Hillyard argues that the Board failed to properly
apply Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005).
On April 16, 2010, this Court referred Mr. Hillyard’s appeal for a panel
decision without oral argument. The panel has since determined that oral argument and supplemental briefing are both necessary to resolve the matter before the Court.
The Court requires further briefing on the following questions:
(1) What is a “final decision” of the Board for purposes of when the Court
reviews motions to revise a prior decision of the Board?
(2) In the context of a clear and unmistakable error motion, what is the
definition of the terms “issue,” “matter,” “claim,” “element of a claim,” and “theory”? See, e.g., 38 C.F.R. § 20.1401 and § 3.105 (2010).
(3) When an appellant files a motion to revise either a Board or regional
office decision on the grounds of clear and unmistakable error, is there any limitation on the number of motions that can be filed? If so, what are those limitations? If not, why are there no limitations?
(4) If an appellant files a motion for revision of a Board decision based
on clear and unmistakable error with regard to any of the terms listed for definition in paragraph (1)

above, may the appellant submit an unlimited number of motions to revise
based on clear and unmistakable error, if each motion is based on a different theory?
(5) Is there a difference regarding the number of motions to revise a
decision based on clear
and unmistakable error that may be filed with respect to a regional office
decision, pursuant to 38 U.S.C. § 5109A and 38 C.F.R. § 3.105(a) (2010), and a Board
decision, pursuant to 38 U.S.C. § 7111 and 38 C.F.R. § 20.1400 (2010)?
(6) If the number of motions to revise is or can be limited, how does the
requirement that the Court provide a sympathetic reading to motions to revise based on clear and unmistakable error apply? Is there a difference in the application of this principle when the claimant is represented as opposed to self-represented?
(7)Assume the Secretary’s interpretation is correct,
if a claimant submits a motion containing
two allegations of clear and unmistakable error in a final Board decision,
and the Board
denies one of those allegations on the merits but determines that the
other allegation was not
pleaded with the necessary specificity, would the claimant be able to file
a new motion for
clear and unmistakable error or perfect the unclear motion?
In addition, the Court welcomes any interested AMICUS CURIAE to file a
brief not later
than 30 days after the date of this order. See U.S. VET.APP. R. 29.
Upon consideration of the foregoing, it is
ORDERED that the Clerk of the Court schedule oral argument as the business
of the Court
permits, but not prior to 30 days after the date of this order. It is
further
ORDERED that the parties each submit a memorandum of law addressing these
issues; that
such memorandum include a table of cases and, delineate, in separate
sections, answers to the above
questions; and that the memoranda should be as succinct as possible and
cannot exceed 30 pages,
not including the table of cases. It is further
ORDERED that the parties’ memoranda be filed within 30 days of the date of
this order.
DATED: July 19, 2010
Copies to:
Kenneth Carpenter, Esq.
PER CURIAM
Veterans Pro Bono Consortium, Director of Case Evaluation and Placement
VA General Counsel (027)
2

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