Fithian: BVA motion to reconsider or CAVC Notice of Appeal?

BVA motion to reconsider or CAVC Notice of Appeal?

The case of Jonathan D. Fithian v. Eric K. Shinseki, Opinion Number 08-3077, decided November 9, 2010, concerns a motion to reconsider filed with the VARO rather than the BVA and is another extension of a line of cases arising from the Court’s 2009 decision in Irwin v. Shinseki and coming on the heals of Rickett v. Eric K. Shinseki, Opinion Number 09-2493, decided March 17, 2010 and Posey v. Shinseki, Opinion Number 08-0240, decided April 23, 2010.

Here, a veteran received a negative decision from the BVA and sent a two letters within 120 day. The substance of the letter was the veteran was writing to disagree with the decision regarding his left leg and ankle. He further said the pain in his lower left leg has bothered him since the service. The first was to the BVA but it was not received and the veteran had no proof of mailing. The second was to the VARO and was received but returned with a letter saying it was taking no action on the correspondence and if the veteran wanted to appeal how to do so.

The Court acknowledged that if a motion to reconsider is received by the BVA within 120 days, the decision is not final and the veteran need not file a NOA with the CAVC until after and within 120 days of receiving a decision on the motion to reconsider.

Regarding the first letter to the BVA, the Court found the presumption of regularity only applies to government action and that if the letter was received it would have regularly been associated with the file. Overcoming this motion would requires proof of mailing, such as an independent proof of a postmark, a dated receipt, or evidence of mailing apart from the party’s own self-serving testimony. Id. at *6.

Regarding the second letter to the VARO, the Court stated that it has consistently held the VA is one entity for pleading purposes. Therefore, if the VARO received the motion to reconsider within 120 days than it was properly filed and the statutory 120 days to file a NOA to the CAVC was not triggered until the BVA acted on the motion. Id. at *8. In order to reach this decision, the Court had to deal with several Federal Circuit decisions that seemed to imply otherwise but could reasonably found to be narrow holdings that did not change the Court’s rule that if a motion to reconsider is received by either the VARO or BVA within 120-days, the 120-days to file the NOA to the CAVC is not triggered until the BVA acts on the motion.

Regarding the actual language of the letter, the Court noted it did not use specifically ask for reconsideration but noted did include the veteran’s name and file number, and was addressed to the BVA rather than the Court. The date of the decision appealed (a statutory requirement) was considered apparent from the circumstances and regarding a final statutory requirement that the statement “set forth clearly and specifically the alleged error”, the Court said it is clear the veteran expressed disagreement with the BVA decision and alleged an error of fact regarding the continuation of pain in his lower leg. Id. at *16.

For these reasons, the Court said it was without jurisdiction to hear the appeal but the decision was a victory for the veteran because it forces the BVA to act on the motion to reconsider.

Decision by Judges Greene, Lance and Davis.