Donovan v. WestDonovan v. West
Here, the Board‘s statement of the reasons or bases for its findings and conclusions are inadequate as to its determination of the total amount of money received by Mrs. Bryan from the settlement. The Board did not address: (1) How much money was received by a plaintiff other than Mrs. Bryan; (2) Whether the money received by such a plaintiff was received ultimately by Mrs. Bryan through estate distribution; (3) If so, whether such distribution was considered received by Mrs. Bryan; and (4) Whether the money received by her attorney was, in contemplation of law, “received” by Mrs. Bryan. Only when these questions are addressed and answered can the Court conduct an adequate review. Therefore, the Board‘s decision will be vacated and the matter remanded to the Board to make these factual determinations and conduct a full readjudication. See Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (Court is not to conduct de novo fact finding but rather to remand to Board for it to find facts in the first instance subject to possible later review by Court).
III. CONCLUSION
On consideration of the foregoing, the Court holds that the Board committed legal error that warrants remand. Accordingly, the Board‘s September 11, 1997, decision is VACATED and the matter REMANDED to the Board for further proceedings consistent with this opinion and issuance of a decision supported by an adequate statement of reasons or bases. See
ORDER
PER CURIAM:
The appellant, John E. Donovan, appeals a May 1995 decision of the Board of Veterans’ Appeals (BVA or Board). The Board determined that the appellant‘s indebtedness resulting from a VA home-loan guarantee had been validly established. On October 8, 1998, this Court issued an opinion affirming the Board‘s decision in part, vacating the decision in part, and remanding two matters for readjudication. See Donovan v. West, 11 Vet.App. 481 (1998) (Donovan I). Upon motion for reconsideration, the Court issued a “clarifying” opinion reaffirming its previous decision. See Donovan v. West, No. 95-519, 1999 WL 446035 (Vet.App. June 15, 1999) (Donovan II). Thereafter, the Secretary filed a motion for reconsideration or in the alternative for a full Court decision. On July 29, 1999, the Court granted the Secretary‘s motion for a full Court decision and withdrew the Court‘s opinions in Donovan I and Donovan II. See Donovan v. West, 12 Vet.App. 500 (1999) (en banc).
On March 9, 2000, the Secretary filed a motion to dismiss this case as moot and notified the Court that it had terminated further prosecution of this case. The Secretary assured the Court that “action to recover any debt owed in this matter was stopped ... and money that had been collected by offset was refunded.” On March 16, 2000, the appellant filed a motion in opposition to the Secretary‘s motion to dismiss. The appellant argues that a decision in this case is necessary to prevent VA from proceeding against others in the same manner as it did against this appellant. The appellant did not allege that the Secretary‘s statement of facts was inaccurate.
After a review of the parties’ pleadings, the Court will grant the Secretary‘s motion to dismiss and decline the appellant‘s invitation to issue what would amount to an advisory opinion. The Court finds that the controversy between the parties has been resolved.
Upon consideration of the foregoing, it is
ORDERED that the Secretary‘s motion is granted and the appeal is DISMISSED as moot. It is further
ORDERED that the Board‘s May 1995 decision is VACATED. See Landicho v. Brown, 7 Vet.App. 42, 54 (1994) (citing United States v. Munsingwear, Inc., 340 U.S. 36, 39-41, 71 S.Ct. 104, 95 L.Ed. 36 (1950), to hold that a lower tribunal‘s judgment must be vacated when a case subsequently became moot “to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences“).