            UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


NO . 03-981

JOHN R. GALLAGHER,                                            APPELLANT ,

       V.


ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS,                                APPELLEE.


                      Before FARLEY, IVERS, and STEINBERG, Judges.

                                            ORDER

        On September 26, 2003, in a single-judge order, the Court dismissed Mr. Gallagher's appeal
of the February 14, 2003, denial of reconsideration of an August 16, 1985, decision of the Board of
Veterans' Appeals (BVA or Board) for lack of jurisdiction. On October 16, 2003, the appellant,
through counsel, filed a motion for reconsideration or, in the alternative, for a panel decision.

       Upon consideration of the foregoing, and the parties' prior pleadings, it is

       ORDERED, by the single judge, that the motion for reconsideration is denied. It is

       ORDERED, by the panel, that the motion for a panel decision is denied.

DATED: December 30, 2003                              PER CURIAM.

        STEINBERG, Judge, dissenting: Based on the following three reasons, I voted to grant the
appellant's motion for a panel decision: (1) The single-judge order issued on September 26, 2003,
did not address the appellant's principal argument that on June 24, 2002, he had filed a motion for
revision based on clear and unmistakable error (CUE) (hereinafter motion for CUE revision) and not
a motion for Board of Veterans' Appeals (BVA or Board) reconsideration (August 21, 2003,
Response (Aug. Resp.) at 2-3; September 22, 2003, Response (Sept. Resp.) at 2-3); (2) the BVA
Deputy Vice Chairman's mischaracterization of the appellant's motion for CUE revision as a motion
for reconsideration (February 14, 2003, Letter (Letter) at 1-2) insulated an otherwise reviewable
matter from judicial review; and (3) the appellant was unfairly prejudiced by the BVA Deputy Vice
Chairman's actions.

         As a starting point, I agree with the determination in the Court's September 26, 2003, order
that the appellant's Notice of Appeal (NOA) cannot, under Mayer v. Brown, give this Court
jurisdiction to review the BVA Deputy Vice Chairman's February 14, 2003, letter here on direct
appeal as a denial of a motion for reconsideration of a 1985 BVA decision. Mayer, 37 F.3d 618,
619-20 (Fed. Cir. 1994) (concluding that Court may review decisions by (or on behalf of) BVA
Chairman under 38 U.S.C. § 7261 only "where it already has jurisdiction by virtue of a timely appeal
from a final board decision" because section 7261 "does not independently grant jurisdiction over
such actions"). However, I strongly believe that the following matters also need to be addressed.
First, the appellant had a right to have the Court address his argument, as presented in his August 21,
2003, response to the Secretary's July 30, 2003, motion to dismiss and his September 22, 2003,
response to the Court's August 22, 2003, show-cause order, that he never filed a motion for
reconsideration. Aug. Resp. at 2-3; Sept. Resp. at 2-3. Neither the Court's September 2003 order
nor the Court's decision here regarding the appellant's October 16, 2003, motion for reconsideration
or alternative motion for a panel decision addressed this issue that is absolutely fundamental to this
case.

         Second, the Board mischaracterized the appellant's June 24, 2002, "Motion for Revision of
Decisions Based On [(CUE)]" as a motion for reconsideration when, in fact and in law, it was not
one: Not only is it styled as a motion for CUE revision, but it is expressly filed "pursuant to
[38 C.F.R. §§] 20.1404 [and] . . . 20.1403 [(2002)]" under "Subpart O-Revision of Decision on
Grounds of [CUE]" and specifically refers to CUE at least eight times within the course of the
11-page motion. The appellant states once in the motion that he "requests reconsideration" of the
August 1985 BVA decision (Motion (Mot.) at 1), but the words "motion for reconsideration" appear
nowhere in his motion, see Mot. at 1-11, and the motion contains no reference to Department of
Veterans Affairs (VA) regulations under "Subpart K-Reconsideration" in part 20, title 38, of the
Code of Federal Regulations, see Mot. at 1-11. If the Board had found any ambiguity in the motion
as to its classification (and I find no reasonable ambiguity in it), surely the Board had an obligation
to resolve that ambiguity in the veteran's favor as a motion for CUE revision, see 38 U.S.C.
§ 5107(b) ("[w]hen there is an approximate balance of positive and negative evidence regarding any
issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to
the claimant"); however, neither the Board in referring the matter to the BVA Deputy Vice Chairman
nor the Deputy Vice Chairman in his February 2003 letter addressed such an ambiguity or section
5107(b).

        Third, had the Board properly proceeded with the motion for CUE revision under 38 U.S.C.
§ 7111, its decision would be subject to judicial review, see Jordan v. Principi, 17 Vet.App. 261,
266 (2003) (stating that "[p]ursuant to section 7111, this Court has jurisdiction to review a BVA
decision that considered a claim asserting CUE in a previous BVA decision if that claim was
pending on or after November 21, 1997"), whereas the Deputy Vice Chairman's February 2003
action is not reviewable as a denial of reconsideration, see Mayer, supra. In the opinion for a
unanimous en banc Court in Smith (George) v. Brown, Judge Ivers wrote the following regarding
an analogous use of BVA reconsideration to defeat judicial review in this Court:

               Moreover, to accept the Secretary's interpretation of [Veterans'
               Judicial Review Act] § 402 and section 7103 [of title 38, U.S. Code,]
               would cause this Court's jurisdiction to turn on the decisions of the
               Chairman and the BVA. Cf. C.R. Bard, Inc. v. Schwartz, 716 F.2d


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               874, 877-78 (Fed. Cir. 1983) (Federal Circuit holds that, as arbiter of
               its own jurisdiction, it must have the power to decide whether lower
               court has jurisdiction and to decide that question independent of
               conclusion reached by that lower court). The result of such an
               outcome would allow our jurisdiction to "'float in the air' to be seized
               by [the lower] tribunal at any time." Cerullo [v. Derwinski],
               1 Vet.App. [195,] 197 [(1991)] (quoting Cochran v. Birkel, 651 F.2d
               1219, 1222 (6th Cir. 1981) (quoting Ruby v. Secretary of the Navy,
               365 F.2d 385, 388-89 (9th Cir. 1966) (en banc), cert. denied,
               386 U.S. 1011 (1967))). The BVA Chairman could otherwise defeat
               the right to judicial review at a critical juncture in a case by ordering
               reconsideration of a prior decision which is beyond the reach of that
               right.

Smith (George), 8 Vet.App. 546, 552 (1996) (en banc). The above reasoning from Smith (George)
applies fully to the instant situation, and I believe that the Court's September 2003 order compounds
the error of the BVA Deputy Vice Chairman by ignoring the appellant's contention, which is not only
entitled to the Court's consideration but is also clearly correct, that he never filed a motion for BVA
reconsideration.

        I see at least two alternatives to the Court's treating this case as an appeal of the
February 2003 Deputy Vice Chairman's letter that construed the appellant's motion for CUE revision
as a motion for BVA reconsideration, and dismissing it under Mayer, supra. The Court, either in
denying a panel decision, or, as I would prefer, in granting one, could have noted, analogously to the
action taken in Tablazon v. Brown, that the motion for CUE revision was misconstrued as a motion
for reconsideration, that the motion for CUE revision remains pending before the Board, and that the
Court expects it to be adjudicated expeditiously in accordance with its June 24, 2002, place in line.
Tablazon, 8 Vet.App. 359, 361 (1995) (concluding that appellant's claims were "still open" (and thus
not subject to Court review) because "BVA erroneously treated that rating decision as final and
required new and material evidence to reopen the appellant's claim of entitlement to service
connection for osteoarthritis and/or gouty arthritis"). A second alternative would be for the Court
to issue a panel order (1) construing the NOA here as including a petition for extraordinary relief in
the nature of a writ of mandamus to bring about a reviewable Board decision on the appellant's
motion for CUE revision and (2) directing the Secretary to file an answer. The panel, however,
chose not to pursue these alternative approaches.

        Finally, the February 2003 BVA Deputy Vice Chairman's letter noted that the appellant had
raised a CUE argument and stated: "The motion for review based on CUE in a Board's decision is
different from a motion for reconsideration." Letter at 2. The Deputy Vice Chairman then
determined (1) that under § 3.343 "recent" VA examination reports and medical records had
demonstrated "'some improvement'" and (2) that the Board had "addressed the appropriate rating
reduction and considered the reasonable doubt doctrine". Ibid.; see 38 C.F.R. § 3.343 (2003). This
conclusion lacks an adequate statement of reasons or bases and has been insulated from judicial


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review as part of the BVA Deputy Vice Chairman's letter that purported to be deciding a motion for
BVA reconsideration. Furthermore, pursuant to § 20.1405(d), a motion for CUE revision is to be
decided by the Board and not by the BVA Deputy Vice Chairman. 38 C.F.R. § 20.1405(d) (2003).

        Although I recognize that the appellant may file with the Board another motion for CUE
revision as to the 1985 BVA decision, I believe (1) that it would be unfair for him to have to lose the
16 months that have passed since he first filed his motion for CUE revision – because he would have
to go to the back of the line and start the CUE process over again – and (2) that the Court should,
authoritatively in a precedential action, reject the BVA Deputy Vice Chairman's arbitrary
misconstruction of a very clear and explicit motion for CUE revision as a motion for BVA
reconsideration. The unfair and unfortunate effect of this mischaracterization, sustained by the
Court, has been the denial to the appellant of the availability of judicial review of a section 7111
Board decision on a CUE claim. 38 U.S.C. § 7111; see Smith (George) and Tablazon, both supra.




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