*1 poten address the specifically required to in every of the VCAA
tial have parties when particularly v. issue. See Williams raised the
not (2001). Howev Vet.App. 189
Principi, 15 where, here, and not the
er, the law clearly the VCAA dispositive, is
evidence v. applicability. have no See Sabonis
can (1994);
Brown, Vet.App. 426 Smith cf. Gober, 231-32 v. vet did not affect the
(holding that VCAA payment of interest
eran’s claim for benefits). cases, I In such be
past-due for the to so it is Court appropriate
lieve See, Livesay e.g.,
state. (2001); Dela v. Princi
Vet.App. 165 Cruz Smith, Vet.App. 143
pi, 15
Moreover, develops law in this as our ease
area, to the veterans bar it would be useful providing precedential opinions have interpretation of on this Court’s
guidance
the VCAA. CYCHOLL, Appellant, F.
Charles PRINCIPI, Secretary
Anthony J. Affairs, Appellee.
Veterans
No. 00-2454. Appeals
United States Veterans Claims.
Dec. *2 Bates, IL,
R. Edward of Naperville, pleadings on the for the appellant. McClain, Counsel; Tim S. General Ron Garvin, Counsel; Assistant General Mi- Leonard, chael A. Deputy Assistant Gener- Counsel; Cote, al and Christine M. all of DC, Washington, were on pleadings appellee. HOLDAWAY, IVERS, Before STEINBERG, Judges.
STEINBERG, Judge, opinion filed the HOLDAWAY, of the Court. Judge, and IVERS, Judge, separate filed concurring opinions.
STEINBERG, Judge: The appellant, veteran Cyc- Charles F. holl, previously appealed through counsel a 29, 2000, November decision of the Board (Board BVA) Appeals Veterans’ or Department denied a Af- Veterans (VA) rating fairs of total disability based (TDIU). on individual unemployability On 21, 2001, March the Court vacated that Board decision and remanded the matter readjudication. Currently pending be- fore the appellant’s Court is the applica- tion, timely through counsel, filed for at- torney fees under the Equal Access to Act, 2412(d) (EAJA). Justice 28 U.S.C. has response op- filed a application. to the For the rea- follow, sons that grant the Court will application. Background I. Relevant On November the Board deter- mined that the veteran was not entitled to rating. TDIU On December Cullens, counsel, supra; Ba filed, App. No- through (1996), zalo v. March Appeal. tice of On on other sub nom. Bazalo grounds rev’d Designation of the Rec- Secretary filed the (Fed.Cir. West, F.3d and, ord on March (holding [appel that “statement for a motion remand. unopposed filed *3 ‘party’ is a satisfies prevailing eligi lant] Secretary’s motion was The basis for the bility requirement jurisdictional pur need Board to in its the for the address poses”). the potential decision the of 2000, Act
Veterans Claims Assistance
of
Prevailing-Party
A.
Status
(Nov.
106-475,114
9,
2096
Pub.L.
Stat.
No.
above,
eligible
in
to be
(VCAA),
As noted
order
had been
which
enacted
pursuant
for fees
to the EAJA an appli
BVA
to
of the
decision.
the issuance
a “prevailing party”.
cant must have been
Court,
March
the
in an un-
On
Cullens,
2412(d)(1)(A);
§
28 U.S.C.
see
su
by the Clerk
the
published order issued
see also
Board &
pra;
Buckhannon
Care
Court,
Secretary’s
granted the
motion.
v.
Dep’t
Home W.V.
Health and Human
April
appellant
the
filed
On
Res.,
1835,
598,
1839,
532 U.S.
121 S.Ct.
EAJA
through
pending
appli-
counsel the
(2001) (defining “prevail
found in the VCAA”. Re- Sanden v. (1992). Also, He also sponse (Resp.) asserts the Board must include in its solely remanded based on the “the Court decision a written statement of the reasons in the change in law as reflected VCAA.” findings or bases for its conclusions point; Ibid. That is not the no one dis- present material issues of fact and law putes that the remand was due to the record; ed on the the statement must be question, enactment of the VCAA. The adequate to enable an to under however, whether is either Sumner precise stand the basis for the Board’s criteria were met for finding decision, as well as to facilitate review in error”, “predicated upon administrative 7104(d)(1); this Court. See 38 U.S.C. Sumner, Here, as concluded be- Allday v. 7 Vet.App. low, both criteria were satisfied. Derwinski, *4 Vet.App. Gilbert 1 (1990). nearly 57 In a identical factual Secretary’s unopposed the motion for situation, this Court concluded as follows: remand, which was the basis for the vacating Clerk’s order the Board decision here, The Board’s decision issued after matter, appeal remanding on the the November enactment of the noted, in the first three sen VCAA, fails to mention the new statute tences, that the VCAA’s enactment on a or to indicate whether the Board consid- date that 20 days before the Novem ered if appellant, light in of the ber BVA decision appeal; on VCAA, is entitled to additional notifica- stated that BVA’s in “[t]he decision adju- tion or assistance from VA instant case was made on the basis of dication of her claim. For these rea- chapter previous requirements” 51’s sons, we hold that the Board failed to that the “substantially VCAA had amend adequately ... applicable consider “all 51”; provisions chapter ed the and not provisions of law” provide and to statutory ed that “the new requirements”, adequate statement of the reasons or which had not been addressed in the BVA bases for its decision. See 38 U.S.C. decision, “must be by addressed first 7104(a). § (Mot.) BVA”. March Motion at 1- Weaver, supra. In view foregoing of the 8. proposed: He then “Remand read- here, adjudicative requirements, just as judication in light of VCAA is required. Weaver, held in Court un Board Derwinski, 1 See Karnas 7104(a) questionably violated 38 (1991) (where 313 regulation the law or (d)(1) in failing poten address the changes after a claim has been filed or VCAA) (i.e., tially applicable law that reopened but before the administrative had been enacted and became effective or judicial-appeal process has been con while the veteran’s claim pending be cluded, the version mo[re] favorable to the Karnas, fore the supra; Board. See see (em apply).” 2 should Mot. at Sanden, Allday, also Schafrath, and Gil added). phasis bert, Thus, all cor required rectly Board is to consid in argued his motion for remand er, decision, “poten “readjudication discuss its that in light of the VCAA tially applicable” provisions as, reg required” law and [wa]s under Kami and also Derwinski, Gilbert, ulation. correctly supra, Vet. cited to and sec Schafrath 7104(d)(1). App. see 38 tion Accordingly, Mot. at 2. 7104(a); v. Principi, Weaver 14 Vet. both of the Sumner alternative criteria for (2001) App. order); (per curiam determining “predi- whether a remand was predated Vaughn in in the enactment of the were met error” administrative cated on VCAA, the Board decision in this First, Secretary’s motion whereas this case. light postdated “readjudication such enactment. As the for remand for case Kamas, reliance on Vaughn, “[g]iven direct that the the VCAA” stated Court of the “acknowledgement]” was an supra, the enact- basis for the remand was sole Sumner, error”, “administrative Board’s of the and that the Board’s ment VCAA in law addressing supra, in not this case occurred before disposition of the administra that had occurred “before VCAA, there could the enactment of the concluded”, process ... been ha[d] tive any Board error with re- not have been Karnas, 2; also Mot. at see By at 279. spect to the VCAA.” Id. Second, similarly, by granting contrast, disposition where the Board’s motion, “recognize[d] adminis a case occurs after the enactment error”, Sumner, Ste supra. See trative fact, can, there be Board error West, 117-18 phens v. to a failure to address the respect (where joint motion granted hold, under this Court’s VCAA. We thus remand, order re “it is the Court’s the remand in binding precedent, claim, consequently manding adjudi- predicated which was motion, joint upon which language BVA, ap- cative error affords the *5 for the remand evaluation of the basis status. pellant prevailing-party focus”). Secretary’s motion for The must vacate action to remand and Court’s B. Substantial Justification at issue were therefore the Board decision attorney This will award adjudicative er the Board’s predicated on party “unless the prevailing fees to a with the having comply in failed to ror of the Unit position finds that the [C]ourt in set forth section statutory requirements justified”. substantially was 28 ed States 7104(a) (d)(1) in “change because Gober, 2412(d)(1)(A); Swiney v. by Secretary, the enactment law” cited 65, 70 Stillwell v. 14 already occurred when of the (1994). 291, In 301 6 the decision that had the Board issued attorney payment avoid the order to appealed been to this Court. Secretary bears the expenses, fees pre Secretary’s argument against The demonstrating position that his burden ground on the vailing-party status the ad substantially justified at both was “solely required due readjudication (Court) (BVA) litigation judicative in law as reflected ... [to] Brown, Vet.App. Locher v. 9 stages. See 5) what (Resp. at confuses the VCAA” (1996). 535, applies This Court 537 ease with situation transpired this determining wheth following standard Principi, 15 Vet. Vaughn v. described Secretary’s position was substantial er the (2001). 277, Vaughn, in an App. 280 ly justified: issued involving a BVA decision appeal the reasonable- demonstrate VA must enactment on Novem before VCAA’s fact, ness, position of the in law and ap held that the ber Court, before the ... in a matter VA achieving pre from pellant precluded ... by to act action or failure and of the obtaining “based on vailing-party status VA, ... based matter before VA in a readjudication light solely for circumstances, totality of the upon the enactment of VCAA”. of the conduct, merits, given, reasons including Vaughn and critical distinction between judicial precedent with consistency decision case is that the Board the instant 360 Moreover, policy respect posi- to such VA on November
tion, act, and action or failure to to the BVA decision on appeal, the VA appeal reflected in the record on and the General Counsel issued a precedent opin filings parties of the before the Court. ion that concluded “that all of Stillwell, Vet.App. 6 at 302-03. The Sec provisions apply [VCAA]’s to claims filed retary argues position that his was sub on or after November as well toas stantially justified “[t]he because basis for claims filed before finally then but not the remand ... involved the Court’s re decided as of that date.” VA Gen. Coun. Holliday cent decision in Principi (Nov. Prec. 11-00 [hereinafter recons, [, 286, Vet.App. 280 mot. de 7104(c) Prec. G.C. Under 11-00]. section nied, order), (per curiam of title by, Board is bound inter denied, mot. Court review 15 Vet. for full alia, “the precedent opinions the chief (2001) (en order)], App. banc which ... legal officer of Department.” See 38 that all provisions [held of the VCAA are (General Counsel is VA’s potentially applicable to claims pending on officer”); legal “chief Herlehy the date of the VCAA’s enactment and 15 Vet.App. (per curiam or by during which] was issued this Court der) 7104(c) (citing section for proposition pendency of the [a]ppellant’s appeal [to by that “Board is bound VA General Coun this underlying Court] Board’s deci sel precedential opinions”). Because the Resp. sion.” at 12. We conclude that the November Secretary has not carried Board decision his burden of demonstrating that his was sub case failed to discuss the justified. stantially claim, the VCAA to this and because the Board 11-00, was bound G.C. Prec. Perhaps the most fundamental reason why reject we Secretary’s must which con concluded that the appli VCAA was *6 II.A., above, tention is our holding part claims, cable to such the Board failed to that the predicated Court’s remand was 7104(c). by Furthermore, abide section administrative error because the Secre 7104(c) the Board’s failure to follow section tary’s acknowledged, motion and the Court and G.C. Prec. 11-00 constituted a failure motion, recognized by granting that the to ... applicable provi “considerf] [all] Board’s error under Kamas in not ad law”, sions of as required by 38 U.S.C. dressing the VCAA in a BVA decision 7104(a), § and also rendered inadequate postdating the VCAA’s enactment. Be the Board’s statement of reasons or bases. was, cause Kamas in November a (Court ZP, supra See awarded EAJA fees very precedent, having well-established and expenses upon finding Secretary’s po before, been issued years over 10 the Sec sition at administrative stage not substan retary cannot justify a Board error fail tially justified where Court on merits had Brown, ing apply to Kamas. ZP v. See vacated BVA appeal decision on based on (per curiam or provide Board’s failure to adequate state der) (Secretary’s position at administrative ment of pursuant reasons or bases to 38 stage justified not substantially failing 7104(d)(1) for the Board’s denial to comply with applicable opinion Court claim, rating-increase cited, of and Court issuance, “long after” its in that about case alia, Gilbert, inter supra, which had been earlier); 20 months Elcyzyn decided over nine months before Board (1994) (same toas BVA Court); by decision decision vacated the see applicable issued 5 months after also (to effect). opinion). Court Elcyzyn, supra same Secretary’s position by motion tion for the at the Although granted the remand post-BVA- stage, grant appel- the Court’s and will litigation cited to the the Court Holliday, opinion in in the re- application decision lant’s EAJA amount “that all principle provisions the at quested. Elcyzyn, See to applicable potentially of the VCAA are III. Conclusion VCAA’s on the date the pending claims foregoing Upon consideration the (Mot. 2), Karnas, our as enactment” analysis pleadings parties, the the concludes, re clearly foregoing discussion grants appellant’s changed the law quired a remand when $2,956.87. application the amount pending a case was before while APPLICATION GRANTED. Board, Holliday a situ whereas concerned predat decision had ation where BVA HOLDAWAY, Judge, concurring: the instant
ed the VCAA. postdated the enactment of BVA decision opinion I the principal concur both necessitated Judge expressed by and also views Board’s failure to with 38 by comply Ivers. (d)(1) 7104(a), (c), and well- I, however, prepared say am not to Herlehy, see precedent, established the “failure” of the Board discuss the Gilbert, Sanden, Karnas, by supra, all will, cases, automatically con- VCAA addressing the of the new law applicability lack justification. of substantial stitute Board enacted in the VCAA to the passed, When law was this Court case instant is therefore decision. its full struggled implica- a time with Elcyzyn. ZP indistinguishable from by remanding tions. We resolved Furthermore, Secretary’s argument though recognized most cases even we Holliday ignores Board’s fail based on where the there were cases 7104(c) to abide and G.C. ure section We should problematic. VCAA Finally, given 11-00. Prec. General require prescient the Board to be not opin BVA-binding precedential Counsel’s being “substantially precedent of condition applicability, the general ion about VCAA If a de- justified.” offers at the time of its deci obliged, Board was in a justification substantial case fense of here, whether to address the VCAA’s sion “failed” where Board discuss regarding of the law the Secre *7 I, one, VCAA, carefully will consider (in duty notify to tary’s the facts arguments in the context of (in 5103A, to duty assist particular case. 5107(a)) more fa superceding section was pre- to the than the appellant vorable IVERS, concurring: Judge, Karnas, law on matters. VCAA those See supra. administrative error in this The upon predicated, which the remand was
Therefore, Secretary we hold that post- patent. The Board’s decision was burden carry failed his of demon has VCAA, date of the so dated the effective strating that the administra his applicability of the failure address substantially justified when stage tive administrative error. clearly VCAA the exist comply the Board failed to Furthermore, for a moved statutory requirements of sections ing not address (c), (d)(1). because the Board did 7104(a), Lock Swiney, See Stillwell, Karnas, appellant’s to the er, respect VCAA with in the pointed As is out justifica- thus need not address the claim TDIU. opinion, pre-dated Board’s decision see, e.g.,
the enactment of the
Vaughn
Principi,
(2001), would, failure to address the VCAA course, not have been administrative
error.
When, matter, in this administrative
error facially apparent, is the Secretary
acknowledges the error a motion for
remand, Court orders a remand
based on the acknowledged administrative
error, can be recognized as a
prevailing party under the rule pro
nounced in Sumner v. 15 Vet. (2001).
App. 256 The Court did not in this
decision, and should not future deci
sions, strive to read into a Secretary’s remand,
motion for or pleadings into the
generally, an admission of administrative error,
error. The administrative whether not,
admitted or should
be clear before it can be the basis of the
Court’s concerning determinations application. WENSCH, Appellant,
James E.
Anthony PRINCIPI, Secretary J. Affairs, Appellee.
Veterans
No. 99-2210.
United Appeals States Court of
for Veterans Claims.
Dec.