May v. Nicholson ( 2006 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
06-7036
ROBERT J. MAY,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
DECIDED: December 8, 2006
__________________________
Before MAYER, PROST, Circuit Judges, and WHYTE, District Judge.∗
PER CURIAM.
Robert J. May appeals the judgment of the United States Court of Appeals for
Veterans Claims, which vacated the Board of Veterans’ Appeals’ denial of his motion for
revision on grounds of clear and unmistakable error, and remanded his claim to be held
in abeyance pending the final resolution of the underlying case. May v. Nicholson, No.
04-0774 (Vet. App. Aug. 5, 2005). We affirm.
∗
Honorable Ronald M. Whyte, United States District Court for the Northern
District of California, sitting by designation.
On March 7, 2003, the Board of Veterans’ Appeals issued a decision denying
May’s claim for an increased disability rating for his sciatic nerve condition, and also
denying his claim that his other injuries were service-connected. In June 2003, May
filed a motion for revision and reconsideration of that decision. Specifically, he argued
that the board’s decision should be revised because it constituted clear and
unmistakable error (“CUE”), or alternatively, that a motion for reconsideration should be
granted. In separate decisions, the board denied May’s motion for revision on grounds
of CUE, and it also denied his motion for reconsideration of the underlying decision.
May appealed both decisions to the Veterans Court, which held that the board lacked
jurisdiction to entertain the CUE claim because the direct appeal of the board’s decision
was still pending. Accordingly, the Veterans Court vacated the board’s denial of the
CUE claim and remanded it to be held in abeyance pursuant to 38 C.F.R. § 20.1410.
Section 20.1410 requires the board to stay a motion for revision of a decision on
grounds of CUE if the underlying board decision is pending appeal. The board’s March
7 decision was not yet final and, in fact, the direct appeal from that case is still pending
before the Veterans Court. Thus, the board did not have jurisdiction to entertain May’s
motion for revision on grounds of CUE, and the Veteran’s Court ruling is correct.
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