Gomez v. McDonald,
Case Number 14-2751, includes an order decided November 19, 2015 and concerns a
facially untimely notice of appeal after the veteran’s motion to the Board was
never responded to. The Court found the
notice was timely.
The Board issued a decision in June 2013. In July 2013 the veteran, who was pro se,
filed a “motion for revision of Board decision pursuant to Subpart-Section
20.1400 Rule A&B) Inextricably Intertwined”. In August 2014, the veteran filed a notice of
appeal with the Veterans Court explaining the Board refused to reply to his
Motion for Reconsideration.
The Court received from the Secretary proof the veteran had
filed the July 2013 motion, but that a mailroom employee had determined the statement
should be sent to the RO rather than being addressed by the Board. The RO took no action beyond placing it in
the claims file. Still, the Secretary
characterized the submission to revise the Board decision based on CUE and that
no motions to reconsider had been received by the Board, and filed a motion to
dismiss or alternatively to find the notice of appeal was timely.
The veteran argued, now through counsel, that the July 2013
motion abate the finality of the Board decision and that his prematurely filed
notice of appeal was made effective when the Secretary stated the motion was
not one for reconsideration. The Court
noted that in Ratcliff v. Shinseki, 26 Vet. App. 356 (2013) the court
acknowledged the Board’s policy of treating all written expressions of
disagreement as motions to reconsider.
It then followed the veteran’s argument and accepted the Secretary’s
later decision to regard the motion as something other than a motion to
reconsider as the final date.
Attorneys frequently see instances where there remains
confusion by veterans about whether to file a motion with the Board or a notice
of appeal with the Court. If you have
time, consulting an attorney before filing either might be most effective.
Order by J. Lance and Bartley. Dissent by J. Kasold.
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