Veteranclaims’s Blog

October 31, 2010

Update: Hillyard v. Shinseki, Bench Ordered “Issue” Definitions Responses

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.

See Thursday, October 28, 2010, Hillyard v. Shinseki, Oral Arguments, Definition of Issue in CUE at the Board

As we stated, 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 also included the Federal Circuit’s definition of “issue” in Hamilton, and wondered if the CAVC will use Hamilton in its decision.See below:

Here are the Two Ordered definitions of “Issue”, which both cite back to 38 C.F.R. § 20.1401(a).

Neither cited to Hamilton, which defined “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”).)”

We will await the CAVC written decision to see what they conclude.

CARPENTER, CHARTERED
1525 S.W. Topeka Blvd.
P.O. Box 2099
Topeka, KS 66601-2099
(785) 357-5251
IN THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
JOSEPH C. HILLYARD,
Appellant,
v. Vet.App. No. 08-1733
ERIC K. SHINSEKI,
Secretary for Veterans Affairs,
Appellee.
APPELLANT’S RESPONSE TO
BENCH ORDER OF OCTOBER 26, 2010
At the conclusion of oral argument in this case, a bench order was made for
each party to submit by 1:00 p.m., this date a single sentence definition of the term
“issue,” with citation to supporting authority as used in the VA’s regulations
concerning revisions of final board decisions based on allegations of clear and
unmistakable error.
In response to the Bench Order, Mr. Hillyard submits the following definition:
Unless otherwise specified, the term “issue” in this subpart
means a matter upon which the Board made a final
decision (other than a decision under this subpart).
38 C.F.R. § 20.1401(a).
Mr. Hillyard’s counsel has been unable to identify any other authority for any
other definition of the term “issue” as used in the VA’s regulations concerning
revisions of final board decisions based on allegations of clear and unmistakable
error.
Respectfully Submitted,
/s/Kenneth M. Carpenter
Kenneth M. Carpenter
Counsel for Appellant
Electronically filed on October 26, 2010.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

IN THE UNITED STATES COURT
OF APPEALS FOR VETERANS CLAIMS
JOSEPH C. HILLYARD, )
)
Appellant, )
)
v. ) Vet. App. No. 08-1733
)
ERIC K. SHINSEKI, )
Secretary of Veterans Affairs, )
)
Appellee. )
SECRETARY’S RESPONSE TO THE COURT’S BENCH
ORDER ISSUED AT ORAL ARGUMENT ON OCTOBER 26, 2010
Pursuant to the Court’s Bench Order of October 26, 2010, Eric K. Shinseki, Secretary of Veterans Affairs (Secretary), respectfully submits this response. The Order directed the Secretary to provide a one sentence definition of the term “issue” and provide authorities with pinpoint citations to support such definition.
The term “issue” is defined as a “matter” upon which the Board made a final decision which was appealable, and the term “matter” in this context refers to the finality of a decision, and the scope of each particular issue subject to attack based on clear and unmistakable error is most easily understood by reference to the first page of the Board of Veterans’ Appeals decision where each issue is set forth under the sub-heading “Issue” or “Issues.”
2
List of Authorities:
1. 63 Fed. Reg. 27534-02, 27536-27537
2. 64 Fed. Reg. 2134-01, 2136
3. 38 C.F.R. § 20.1401(a)
4. 38 U.S.C. § 7104(a)
WHEREFORE, Eric K. Shinseki, Secretary of Veterans Affairs, responds to the Court’s October 26, 2010, Bench Order.
Respectfully submitted,
WILL A. GUNN
General Counsel
R. RANDALL CAMPBELL Assistant General Counsel
/s/ Leslie C. Rogall
_______________________________
LESLIE C. ROGALL
Deputy Assistant General Counsel
/s/ Michael A. Carr
_______________________________
MICHAEL A. CARR
Senior Appellate Attorney
Office of the General Counsel (027i)
U.S. Dept. of Veterans Affairs 810 Vermont Avenue, N.W.
Washington, D.C. 20420
(202) 443-5016/5000
Attorneys for Appellee Secretary
of Veterans Affairs
=======================
===============================
=============================================

—————————————————-

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
Posted by Admin. at 3:29 PM
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Labels: Hillyard v. Shinseki; claim defined; issue defined; CUE Board; Hamilton 39 F.3d at 1586-1584;

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