Veteranclaims’s Blog

October 30, 2014

Single Judge Application; Rickett v. Shinseki, 26 Vet.App. 210, 220 (2013); 38 C.F.R. §§ 20.1001(a) (2013), 20.1404(a)-(b)(2013); May v. Nicholson,19 Vet.App. 318 (2005); Revision Motions

Excerpt from decision below:

“On appeal, Mr. Ortiz-Alvarado argues that the Board failed to sympathetically read his August 2008 statement and erred when it found that it was not a motion for reconsideration of a July 2008 Board decision. Appellant’s Brief (Br.) at 6. The Court agrees. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that “with respect to all pro se pleadings, [ ] VA [must] give a sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for [a particular benefit].” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added). In fact, this Court has explained that documents filed with the Court or VA “must be construed liberally in the context of its language and circumstances of filing.”Rickett  v. Shinseki, 26 Vet.App. 210, 220 (2013); see also Kouvaris v. Shinseki, 22 Vet.App.377, 381 (2009) (determining that a filing below was a motion for

3 A review of the record does not reflect that the Board ever asked for clarification of Mr. Ortiz-Alvarado’s statement. Rather, as previously mentioned, the Board sent Mr. Ortiz-Alvarado a letter indicating that it construed his statement as a motion to revise a prior decision based on clear and unmistakable error. R. at 190. A copy of that letter was also sent to Mr. Ortiz-Alvarado’s representative at the time, a service office employed by Puerto Rico Public Advocate for Veterans Affairs. Id.
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reconsideration and not a Notice of Appeal). As it pertains to motions  for reconsideration, the Court explained, in Ratliff v. Shinseki, that it was the Secretary’s policy to treat “every expression of disagreement with a Board decision as a possible motion for Board reconsideration.” 26 Vet.App. 356, 360 (2013).
Here, the Board noted that it read Mr. Ortiz-Alvarado’s August 2008 submission sympathetically when it determined that his statement was not a motion for reconsideration. However, a review of its decision reveals otherwise. First, the Board found “that [Mr. Ortiz-Alvarado’s] August 2008 correspondence does not reasonably raise a motion for reconsideration of [its July 2008 decision].”  R. at 6. The Board explained that Mr.Ortiz-Alvarado specifically uses the word “revise” which mirrors the requirements of a motion to revise a prior final decision based on clear and unmistakable error as opposed to a motion for reconsideration of the Board’s decision. However, there is no requirement that a motion for reconsideration has to contain the word “reconsider” or that a motion to revise a prior final decision based on clear and unmistakable error has to include the word “revise.” See 38 C.F.R. §§ 20.1001(a) (2013), 20.1404(a)-(b)(2013).

Second, the Board stated that the August 2008 correspondence was filed within the 120-day appeal period and then relied on this Court’s decision in May v. Nicholson for the proposition that “upon receipt of a premature [motion to revise a prior final decision based on clear and unmistakable error] the Board must hold the [motion] and not file it at that time, and then, upon expiration of the120-day judicial appeal period without [a Notice of Appeal] having been filed, file the [motion].”19 Vet.App. 310, 320 (2005). However, the Board’s discussion of that case is incomplete. The Board ignores the Court’s analysis in that case regarding the collateral nature of motions to revise a prior final decision based on clear and unmistakable error. In May, the Court stated that “[t]he sole purpose of a [motion to revise a prior decision based on clear and unmistakable error] is to provide a VA claimant with an opportunity to challenge a decision that is otherwise final and unappealable.” Id. at 317 (emphasis added). More importantly, the Court held that such motions “cannot properly be filed while that claim is still appealable on direct review.” Id. at  318.”

======================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-2329
VICTOR ORTIZ-ALVARADO, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
HAGEL, Judge: Victor Ortiz-Alvarado appeals through counsel an April 4,
2012, Board of
Veterans’ Appeals (Board) decision that adjudicated his August 2008
statement as a motion for
revision of a July22, 2008, Board decision that denied his claims for
benefits for residuals of a scalp
laceration and post-traumatic stress disorder based on clear and
unmistakable error, rather than as
a motion for reconsideration. Mr. Ortiz-Alvarado’s Notice of Appeal was
timely, and the Court has
jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a).
Neither party requested
oral argument, nor have the parties identified issues that they believe
require a precedential decision
of the Court. Because the Board erred in finding Mr. Ortiz-Alvarado’s
August 2008 statement was
a motion to revise a July 2008 Board decision based on clear and
unmistakable error rather than a
motion for reconsideration, the Court will reverse the Board’s finding in
that regard and remand for
reconsideration of the July 2008 Board decision by the Board chairman.
I. FACTS
Mr. Ortiz-Alvarado served on active dutyin the U.S. Armyfrom September
1952 to October
1958, including periods of service in the U.S. Army National Guard.

In May 2000, Mr. Ortiz-Alvarado filed a claim for benefits for residuals
of a head wound.1
In May 2002, the regional office issued a decision denying his claim for
benefits for residuals of a
scalp laceration. Mr. Ortiz-Alvarado filed a Notice of Disagreement with
that decision. Shortly
thereafter, Mr. Ortiz-Alvarado filed a second Notice of Disagreement and a
statement indicatingthat
he was also seeking entitlement to benefits for post-traumatic stress
disorder. In October 2002, the
regional office issued a Statement of the Case that continued the denial
of Mr. Ortiz-Alvarado’s
claim for benefits for a head injury; however, it did not mention post-
traumatic stress disorder. Mr.
Ortiz-Alvarado ultimately appealed that decision to the Board.
In September 2004, the regional office denied Mr. Ortiz-Alvarado’s claim
for benefits for
post-traumatic stress disorder. Mr. Ortiz-Alvarado filed a Notice of
Disagreement with that decision
and ultimately appealed to the Board.
On July 22, 2008, the Board issued a decision that denied Mr. Ortiz-
Alvarado’s claims for
benefits for residuals of a scalp laceration and post-traumatic stress
disorder. Along with that
decision, the Board sent Mr. Ortiz-Alvarado a notice of his appellate
rights. On August 12, 2008,
21 days later, Mr. Ortiz-Alvarado sent a statement to VA stating that it
is “[i]n reply of 0141-A2[2
]
dated in July 22/2008 for [s]ervice-[c]onnected . . . [h]ead injury and [
post-traumatic stress
disorder],” and “requestingto revise the [July2008 Board] decision based
on clear and unmistakable
errors.” R. at 196. Mr. Ortiz-Alvarado then described the errors he
believed the Board had
committed. That same month, the Board sent Mr. Ortiz-Alvarado a letter
stating that they had
received his statement and construed it as a motion to revise the July
2008 Board decision based on
clear and unmistakable error.
In September 2009, the Board found that the July 2008 decision did not
contain clear and
unmistakable error. Mr. Ortiz-Alvarado appealed that decision to the Court.
In August 2011, the
In a July 2001 rating decision, the regional office construed Mr. Ortiz-
Alvarado’s May 2000 claim as one to
reopen a previously denied claim for headaches. As a result, the regional
office denied that claim because Mr. Ortiz-
Alvarado failed to submit new and material evidence. In September 2001,
the regional office sent Mr. Ortiz-Alvarado
a letter acknowledging the error. The regional office then stated that it
was going to construe his claim as a new claim
for residuals of a scalp laceration, otherwise referred to as a head
injury, and it becomes the underlying claim for this
appeal. Record (R.) at 1013.
This number refers to the number listed on the cover letter accompanying
Mr. Ortiz-Alvarado’s July 22, 2008,
Board decision. R. at 200.
2
1
2

Court granted the parties’joint motion for remand. The parties agreed
that the Board failedto explain
whether Mr. Ortiz-Alvarado’s August 2008 statement was properly construed
as a motion to revise
the July 2008 Board decision based on clear and unmistakable error or as a
motion for
reconsideration.
In April 2012, the Board issued the decision on appeal. The Board
explained that Mr. Ortiz-
Alvarado’s August 2008 statement was not a motion for reconsideration
because he “did not actually
ask the Board to reconsider the prior decision. . . . the Board stated
that he specificallyrequested that
the prior Board decision be revised based on “clear and unmistakable
errors.” R. at 6. The Board also
explained that “neither [Mr. Ortiz-Alvarado] or his then representative
. . . made anyefforts to clarify
that the August 2008 correspondence was actuallyintended to be a motion
for reconsideration.”R. at
7.3
The Board then denied Mr. Ortiz-Alvarado’s motion to revise the July2008
Board decision based
on clear and unmistakable error. This appeal followed.

II. ANALYSIS
On appeal, Mr. Ortiz-Alvarado argues that the Board failed to sympathetically read his August 2008 statement and erred when it found that it was not a motion for reconsideration of a July 2008 Board decision. Appellant’s Brief (Br.) at 6. The Court agrees. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has
held that “with respect to all pro se pleadings, [ ] VA [must] give a sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised bythe evidence, applying all relevant laws and regulations,
regardless of whether the claim is specifically labeled as a claim for [a particular benefit].” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added). In fact, this Court has explained that documents filed with the Court or VA “must be construed liberally in the context of its language and circumstances of filing.”Rickett  v. Shinseki, 26 Vet.App. 210, 220 (2013); see also Kouvaris v. Shinseki, 22 Vet.App.377, 381 (2009) (determining that a filing below was a motion for

A review of the record does not reflect that the Board ever asked for clarification of Mr. Ortiz-Alvarado’s
statement. Rather, as previously mentioned, the Board sent Mr. Ortiz-Alvarado a letter indicating that it construed his statement as a motion to revise a prior decision based on clear and unmistakable error. R. at 190. A copy of that letter was also sent to Mr. Ortiz-Alvarado’s representative at the time, a service office employed by Puerto Rico Public Advocate for Veterans Affairs. Id.
3
3

reconsideration and not a Notice of Appeal). As it pertains to motions  for reconsideration, the Court
explained, in Ratliff v. Shinseki, that it was the Secretary’s policy to treat “every expression of
disagreement with a Board decision as a possible motion for Board reconsideration.” 26 Vet.App.
356, 360 (2013).
Here, the Board noted that it read Mr. Ortiz-Alvarado’s August 2008 submission sympathetically when it determined that his statement was not a motion for reconsideration. However, a review of its decision reveals otherwise. First, the Board found “that [Mr. Ortiz-Alvarado’s] August 2008 correspondence does not
reasonably raise a motion for reconsideration of [its July 2008 decision].”  R. at 6. The Board explained that Mr.Ortiz-Alvarado specifically uses the word “revise” which mirrors the requirements of a motion to revise a prior final decision based on clear and unmistakable error as opposed to a motion for reconsideration of the Board’s decision. However, there is no requirement that a motion for reconsideration has to contain the word “reconsider” or that a motion to revise a prior final decision based on clear and unmistakable error has to include the word “revise.” See 38 C.F.R. §§ 20.1001(a) (2013), 20.1404(a)-(b)(2013).

Second, the Board stated that the August 2008 correspondence was filed within the 120-day appeal period and then relied on this Court’s decision in May v. Nicholson for the proposition that “upon receipt of a premature [motion to revise a prior final decision based on clear and unmistakable error] the Board must hold the [motion] and not file it at that time, and then, upon expiration of the120-day judicial appeal period without [a Notice of Appeal] having been filed, file the [motion].”19 Vet.App. 310, 320 (2005). However, the Board’s discussion of that case is incomplete. The Board ignores the Court’s analysis in that case regarding the collateral nature of motions to revise a prior final decision based on clear and unmistakable error. In May, the Court stated that “[t]he sole purpose of a [motion to revise a prior decision based on clear and
unmistakable error] is to provide a VA claimant with an opportunity to challenge a decision that is otherwise
final and unappealable.” Id. at 317 (emphasis added). More importantly, the Court held that such
motions “cannot properly be filed while that claim is still appealable on direct review.” Id. at  318.
Thus, in light of the foregoing, if the requirements for a motion for reconsideration can be
met, the Board should have liberally construed Mr. Ortiz-Alvardo’s  statement as a motion for
4

reconsideration rather than a motion to revise a prior final decision
based on clear and unmistakable
error.
The Court has the authority to consider whether a document is a motion for
reconsideration.
See Fithian v. Shinseki, 24 Vet.App. 146, 157 (2010); see also Kouvaris,
22 Vet.App. at 381
(determining that a filing below was a motion for reconsideration and not
a Notice of Appeal); cf.
Beyrle v. Brown, 9 Vet.App. 24, 28 (1996) (“Whether a document is [a
Notice of Disagreement] is
a question of law for the Court to determine de novo under 38 U.S.C. §
7261(a).”); Gibson v. Peake,
22 Vet.App. 11, 15 (2007) (stating that whether a document constitutes a
Substantive Appeal to the
Board is a matter of law, which the Court reviews de novo). Pursuant to
regulation,
a motion for reconsideration must be in writing and must include (1) the
name of the
veteran, (2) the applicable VA file number, and (3) the date of the
Board’s decision
to be reconsidered. It must also set forth the alleged obvious error of
fact or law in
the applicable decision of the Board, or other appropriate basis for
requesting
reconsideration.
Boone v. Shinseki, 22 Vet.App. 412, 414 (citing 38 C.F.R. § 20.1001(a)).
Here, a review of Mr.
Ortiz-Alvarado’s August 2008 statement reveals that it is in writing;
contained his name, his VA file
number, and the date of the Board’s decision; and set forth a basis for
the alleged errors. See R. at
196. For example, Mr. Ortiz-Alvarado stated that the October 2005 ”
examiner [did] not exam the
right way.” Id. Further, he stated “[post-traumatic stress disorder] it is [
e]stablished by my official
record.” R. at 197. At the end of his statement, Mr. Ortiz-Alvarado
asserted that his “claim must be
afforded expeditious treatment.” Id.Inlightofthefact thatMr.Ortiz-
Alvarado’s statement contained
the requirements for a motion for reconsideration set forth in § 20.1001(
a) and because VA should
have read his August 2008 statement liberally in favor of Mr. Ortiz-
Alvarado, the Court concludes
that the Board erred when it found Mr. Ortiz-Alvarado’s August 2008
statement constituted a motion
to revise a prior final Board decision based on clear and unmistakable
error rather than a motion for
reconsideration. See Boone, 22 Vet.App. at 414-15.
Accordingly, the Court concludes that reversal of the Board’s finding that
the August 2008
statement is a motion to revise a prior final Board decision based on
clear and unmistakable error
is warranted and the Court will remand the matter to the Board for
reconsideration of its July 2008
decision by the Board chairman. The Court asks the Board to take into
consideration Mr. Ortiz-
5

Alvarado’s advanced age and several apparently life-threatening
disabilities when dealing with this
matter. Once the final Board action on the decision on the motion for
reconsideration is taken, Mr.
Ortiz-Alvarado will have 120 days from the date of that decision to file a
Notice of Appeal with the
Court if he so chooses. See Ratliff, 26 Vet. App. at 361; Rosler v.
Derwinski, 1 Vet.App. 241, 249
(1991).
III. CONCLUSION
Upon consideration of the foregoing, the Court REVERSES the April 4, 2012,
Board finding
that Mr. Ortiz-Alvarado’s August 2008 statement is a motion to revise the
July 2008 Board decision
based on clear and unmistakable error rather than a motion for
reconsideration and REMANDS the
matter to the Board for reconsideration of its July 2008 decision by the
Board chairman.
DATED: February 19, 2014
Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)
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