*1 as counsel and withdrew unwinnable case MAJEED, Appellant, Salahudin work cannot be considered
of record attorney by an performed typically is v. with the zealous advoca- is consistent PRINCIPI, Secretary Anthony J. compensate. See cy EAJA intended Affairs, Appellee. Veterans West, Vet.App. v. Chesser No. 00-2015. (1998). Appeals States Court United Rozmus, supra, an Pursuant for Veterans Claims. generally may eligible fees 5, 2002. Argued June performed work
pursuant to EAJA for agree fee prior entering into a formal Decided Oct. 2002. attorney prior or her ment with his appear filing a notice of attorney’s However, once an
ance with the Court. Court, permission
attorney, with the case, any subsequent
withdraws from of that performed in the context
services compensable under are not EAJA
case they performed are after new
unless appearance is filed with the
notice Therefore, eli
Court.
gible fees to EAJA for pursuant to collect performed following her attor
services on
ney’s withdrawal November appearance
until counsel filed his second August
III. having determined awarded, the matter fees are to be
EAJA a reason determining what constitutes Judge in this matter is returned
able fee disposition. See 28
Farley single-judge West, 2412(d)(2)(A); Perry
U.S.C. (1998); v. Der Frankel (1990).
winski,
John E. appellant. Joe, DC, Darryl Washington, A. McClain, Counsel; whom Tim S. General Garvin, Counsel; Ron Assistant General and R. Campbell, Principal Depu Randall ty Counsel, Assistant General all of Wash DC, ington, were on pleadings, appellee. KRAMER, Before Judge, Chief STEINBERG, FARLEY and Judges. below, predicat- forth STEINBERG, opinion disposition, set Judge, filed the KRAMER, Judge, here, Chief precise of the Court. amounts involved ed on opinion. concurring filed a figures will be used order rounded simplify ensuing discussion. STEINBERG, Judge: intended rounding notes that this Majeed, appellant, Salahudin *3 only not to improve readability to and counsel, an review of Au- seeks through amount.) any a of serve as recalculation 14, 2000, Board of decision of the gust $9,529.54 readjustments, totaling BVA) Several (Board or that Appeals Veterans’ $30,049.92 $9,500], that, special to as were [hereinafter referred determined (SSB) to him the separation paid amount, bonus apparently re- made to the SSB $24,039.94 Army, proper was the U.S. recoupment by Army of flecting U.S. Department from amount to be obligations, satisfy an to amount sufficient (VA) disability com- of Affairs Veterans a bo- primarily repayment of reenlistment (R.) 4, The appel- at 7. pensation. Record not met his for which the veteran had nus brief, and reply a and a lant filed brief obligation, that the full contractual service Secretary a brief. Oral filed R. Army. at 60. veteran owed U.S. 5, 6, on 2002. June was held June On duty He on active thereafter served Secretary 2002, to the Court ordered July February through 1993. training from notifying file the Court of a memorandum R. at 11. appellant’s then-pending of status that, the amount request for a waiver of 1994, August Regional Office In VA VA, to as an according to he owed VA (RO) Atlanta, Georgia, granted the vet- disability compensa- his overpayment of several dis- eran VA service connection for order, response to tion. In the Court’s abilities, a assigned com- for which he 20, 2002, response Secretary a June filed of R. at 18. disability rating 40%. bined waiver re- indicating that him his benefits That informed VARO 18, quest had been denied on June 2002. all would be withheld until 2002, 3, appellant submit- On October 26. He authority recouped. had R. at supplemental re- SSB been ted a notice of regulatory amendment. The garding recoup- to appealed issue jurisdiction case under Court has over this (R. 29), January and 1997 ment 7252(a) 7266(a). §§ For 38 U.S.C. filed with the Board representative below, the set forth Court will reasons the veteran “should pleading arguing that appeal on vacate the Board decision disability his service[-]connected receive readjudication. the matter for remand recoupment of his compensation without Background I. Relevant February R. at 38. separation pay.” duty veteran served on active 1997, the veteran’s the Board remanded Sep- Army from December 1981 U.S. clarify several matters claim to the RO Upon separation 1992. R. tember “readjudicate the veteran’s then to service, an he received SSB disability compensation that his VA claim $30,058.67 referred [hereinafter amount of separation subject recoupment of is not (We $30,000]. there are note that to as adjudicated R. at 46. After pay”. figures forth at discrepancies in set minor (and apparent- on other remand issues appeal record on points various recoup- readjudicate the ly issue did See, (ROA). (describing R. at 10 SSB e.g., 68, ment, filed a the veteran see R. (same), “$30,058.67”), 26 112 amount as (NOD) to that as Disagreement Notice “$30,284.68”), as (describing 81). It that he appears (same), (describing SSB amount 123 341 $9,500 had (same). been “$30,049.92”), argued our Because SSB, only deducted from his pay. received National Defense Authorization Act 104-201, referred for Fiscal Year No. [hereinafter Pub.L. $20,750] 110 Stat. taxes that that amount [herein- before 653], NDAA FY after That proper recoup- was the Ibid.; amendment was later extended “to compare (“[y]ou R. at ment. payment separation pay spe- under the only should recouping been separation cial program benefits under $20,[750]”) (“[y]ou R. at section 1174a title was made collecting separation pay balance during period on beginning December $16,000”). ending September April An “Report of Contact” Transportation Equity 1996”. See ofAct employee seems indicate at the 105-178, Century, the 21st Pub.L. No. *4 Carolina, Winston-Salem, North RO con- 8208, 107, 112 Stat. [hereinaf- request tacted VA’s Central Office to clari- 8208].) 13, ter TEAC February On fication of amount the of SSB to be re- joined the in the Secre- couped in the veteran’s case. R. at 106. (R. 141), tary’s remand motion at and on According April to an Supplemental Court, February the via an order (SSOC), of the Statement Case was “[i]t Court, of granted the Clerk of the $20,[750] determined that should motion, underlying vacated the Board deci- and, therefore, recouped”, be “[a]n sion, (R. 143). and remanded the matter at [$9,500 out[-]of[-]system payment of was] remand, On the veteran filed to at made the veteran”. R. 113. The a pleading argued, in which he inter went to recoup- SSOC note that “[t]he alia, that he given every “should be advan- ment of ... of SSB[ ] the amount tage recalculating the amounts that $20,[750]is correct.” R. at 114. recouped been previously have him from again appealed The veteran this decision because the has law been amended re- to Board; to the he that asserted once more quire tax [that] [f]ederal [i]ncome withheld subject his benefits not re- should to such pay be deducted from the coupment of July his SSB. R. at 118. In recouped amount to [be] returned determined, alia, inter him.” R. at 147. He later filed an addi- disability “[t]he veteran’s VA compen- tional in which pleading argued, inter subject is recoupment sation to of separa- alia, that the Board should “recalculate pay”. tion R. at 125. making In this [fjederal previously amount of withheld in- decision, that, the Board noted taxes to come be refunded as soon [to him] separation “the amount pay to be possible by an payment ‘early hard- recouped issue[,] is not at the Board will ship R. In payment’ ”. at 268. a June any findings regard.” not make in that R. decision, Board, BVA after noting appealed at 123. The veteran then why “it clear the amount of over matter to this Court. On R. 137. $9,000[,] appears represent- to have January Secretary a mo- filed ed a debt of the veteran the service readjudica- tion to remand the matter for department and which depart- the service light tion in post-BVA-decision separation recouped ment from the pay[,] 1174(h)(2). amendment of 10 R. U.S.C. should not have been part considered as (The (R. at 137. amendment section separation pay” remanded 1174(h)(2) recoupment RO, alia, excluded from the claim to inter “deter- equal amount federal what mine the difference vet- between the $30,[000] income tax separation gross withheld from the eran’s separation pay $6,009.98 ... on this less determined document ... and the amount ($20,[750]) the correct separation pay repre- was to be his $9,[500] (i.e., they recouped. amount to be Now al- sents determine what 321). [Qand ready recouped The Board also in the let- represents)” that’s ter[)] $9,500 $20,520.38. “repre- they if the What should directed $14,745.14[,] depart- recouped!,] a sents the service leaves $5,775 ment of a debt owed due to veteran’s balance of owed and so we’re a previously having asking received reenlistment for a minimum [reimbursement] bonus, $5,775.22. explain why the RO should Is that correct? part not be Majeed: Mr. That’s correct sir. separation pay.” R. at 321. atR. 369. The veteran’s claim was forwarded a September Balti- Baltimore, Maryland, R. RO. hearing more officer found that letter, July In a the RO informed the $24,000 amount of the correct Fi- from the veteran records Defense R. recoupment. at 389. As to Accounting nance and Service showed used satisfaction of debt $30,049.92, gross amount of his SSB to *5 Army, “Money the U.S. the RO noted: $6,009.98 fed- from which was withheld for (i.e., paid Depart- to other sources Service taxes, in of resulting eral income a net ment) to off debt is pay the veteran’s SSB $24,- to [hereinafter referred by the law makes ‘received’ veteran. The Ibid; R. at 333. RO 000]. see also provision recoupment of of no waiver “pro- that it then informed the veteran pay the SSB used to veteran’s debt.” of[f] stop payments ef- pose[d] to benefit [his] in R. at 392. That RO issued an SSOC 1,1999, prop- fective October to collect the 406. The 1999. R. at veteran October SSB, i.e., $24,000. R. er amount” of [n]et (R. to the Board appealed this matter An August at 338. 1999 Baltimore RO 395) hearing the argued that officer’s explained the letter to the veteran further “erroneously concluded that the $24,000 R. at calculation of the amount. recoup- the provisions of law mandated 1999, 4, hearing At a September 341-42. separation of ment of the total amount the RO, attorney, veteran’s Mr. that entitled, not I was benefit to which veteran, Howell, made follow- and the I separation bonus that amount of ing statements: ” 410). (R. actually received Alright. Mr. Howell: have been [W]e about the calculations very concerned 14, 2000, August In the BVA decision re- determining that have occurred in agreed with the appeal, here on Mr. recoupment or lack of in coupment that, of the veteran’s Baltimore RO There been a num- Majeed’s file. SSB, $24,000 the proper was ... we ber of different calculations disability be VA hearing especially this so that wanted R. 4. The Board noted: compensation. try put correct calcula- we could remaining dispute no appears “There be tion and the amounts on the record disability compensation that veteran’s might any questions to answer that pay; subject separation up about the calculations. come rather, controversy pending now be- R. at 367. solely to the pertains fore recouped.” separation pay to I be ... calculated this amount of
Mr. Howell: $20,755.14[,] R. at 3. is the number shown 3.105(b), argument to oral before the the decision of
Subsequent the Winston-Sa- Court, 6, 2002, binding the Court issued June lem RO was on in all VA subse- directing Secretary order to file a quent determinations. notifying the Court of the memorandum Issue(s) Appealed. 1. facts appellant’s request current status appellant’s argument— case belie the first recovery overpayment for a waiver of only he appealing that the issue 18, disability compensation. On June properly whether there could re- a pleading cap- filed coupment at all and not “Supplemental Appel- tioned Brief of the Indeed, recoupment. before the Winston- lant”; therein, offering he states he is contested, Salem he addition to the “supplemental response brief’ to a (R. propriety any recoupment at 98- question from the at oral argument. bench the amount that was to re- 18, 2002, Pleading June at 1. On June coupment (“[y]ou at 97 should have response Court’s June $20,[750]”)). recouping been ap- On order, Secretary indicates peal of again argued he appellant’s request waiver was denied propriety recoupment. of any R. at 118. the Baltimore June However, Court, appeal his first this 2, 2002, July Secretary On filed agreed to a remand for consideration of opposition June statutory payments extension pleading; he that pleading states that via TEAC 1998 8208 of the amendment arguments therein should “disre- 1174(h)(2) of 10 U.S.C. made NDAA garded” because the Court “did not re- FY R. 1997 653. at 141. The amend- quest supplemental briefing or order 1174(h)(2) ment section related to case, either at oral *6 for amounts withheld federal income taxes Court Opposition [o]rder.” 1. The being subject recoupment. not to R. at not accept filing appel- Court will If 137. was as to the 18, 2002, pleading, lant’s June it because propriety of being recouped, amounts requested by
was neither the Court nor is this amendment would have had no effect it contemplated by Court’s Rules of case; taxes, they on his whether not are Practice and Procedure. withheld, primary could not affect the ar- Analysis II. gument that no amount should. be re- “Finality” Argument couped. A. appellant argues veteran, that the decision It seems that evident after remand, February Winston-Salem that contin- recoup-
was the correct amount argue to ued to that all of recoup- amounts 114) See, binding ment “is improper. and must be ment were R. e.g., at 350 (Br.) honored”. Brief at 3. appellant (August arguing “[w]e letter that be- separation maintains that the Board decision under lieve that neither bonus “improperly ques- review introduced nor reenlistment bonus ... should recouped tion of correct to been place” the first alppellant’s added)). However, Br. at 11. (emphasis [the SSB.” He he also con- tested, claims im- introducing alternatively, that issue was the amount of the proper ap- See, recoupment. e.g., issue was not R. at “[t]hat pealed, was it certainly nor before the Board when 410. it is Although appro- that priate decision made”. Ibid. He states both appellant argue 3.104(a) and, §§ under 38 C.F.R. and propriety any recoupment of in the ever final. The sections alternative, recoupment, of the case have become the amount ap- pertinent part: an argument still constitutes state an such recoupment. to the of peal as Finality § 3.104 decisions. Therefore, is- that the two the extent (a) duly A of a constituted decision (a question are indeed severable sues rating agency original or other agency here), is need not be decided jurisdiction binding final shall be of the stating incorrect issue Department all field offices of appealed, “was recoupment amount of based Affairs as conclusions Veterans it nor was before Board when on the evidence on file the time VA Br. at Further- was made.” decision notification in accordance issues written more, appel- although the conclusion to the j 5104. A final [§ U.S.C. is principal ambiguous here lant’s brief bindiny agency not be shall (the “asks sought relief subject to on the factual revision same cycle an end to the put the Court except duly appel- constituted basis so can order payment except provided late authorities or life”, his financial Br. the conclusion part. 3.105 3.2600 this reply clarifies the that he to his brief relief 3.105 Revision decisions. seeking: is above, As seen the VA has committed (b) opinion. Whenever Difference of prejudicial a number of errors are adjudicative opinion agency an ajppellant ajppellant. [the [The of a revision or amendment $9,294.78, refunded warranted, a previous decision is differ- amount de- the difference between the opinion being involved rather ence termined VARO Winston-Salem error, the than a clear and unmistakable “re- ajppellant to be the amount [the proposed revision will be recommended (less ceived,” $20,755.14 taxes federal Central Office. [VA]
withheld), amount that the Balti- and the 3.105(b) (2001) 3.104(a), §§ 38 C.F.R. correct, more VARO concluded was (boldface added). emphasis italic (less withheld). federal taxes *7 points out Secretary correctly As the at the that he Reply Br. 11-12. To extent (Br. 13), the decision (including this case might appealed be correct that he never RO) has remained of the Winston-Salem Board, respect, of the any the issue approximately since the appellate status proposi- recoupment dubious —a disability compensation initial award of has, appeal- point, at this tion best—he only theory under The August 1994. issue; indeed, only it is issue ed argument appellant’s finality Therefore, the Court appealed here. he if able to succeed would be he were could argument on this rejects appellant’s from recoupment-amount claim “sever” point. appeal and recoupment-propriety claim 3.104(a) 3.105(b). §§ 2. 38 C.F.R. However, he separately. claim each argument, that 38 appellant’s second The (and, shown no contention as makes such 3.104(a) 3.105(b) §§ make the C.F.R. above, II.A.1., even a successful part final RO decision the Winston-Salem point would be undercut regula- binding, fails because these issues). both appealed decisions, appear to final pertain tions misconstrue appellant appears concluding and there no basis 3.104(a) meaning as that the decision any § instant the four RO decisions in the interpretation RO could not al afoul of the very Winston-Salem RO, regardless by 3.104(a) (To tered another § proposes. that he the ex- subsequent the case. actions Such a argues tent that appellant that revision implies view that a decision of an RO is by of the initial RO decision the Winston “final binding” of the date it is appropriate Salem RO was under issued, a result that could be seen 3.105(b) (discussed below), § in that availability odds with of an administra Winston-Salem revised the original RO 7105; appeal, § tive see 38 U.S.C. 38 RO decision after consultation with the VA (Substan 20.201(NOD), §§ C.F.R. 20.202 Office, Central the record reflects that the (2001). Appeal) tive Teten v. Principi, Cf. Winston-Salem RO contacted the VA Cen- (2002) (“at the time of “clarify” tral Office to death, decision the BVA had not be 3.105(b) § whereas come the time for final[] because him to provides that the Central Office is to be file a timely appeal to this Court ... had “proposed contacted with a revision”. 38 However, expired”). assuming even 3.105(b) (2001). § C.F.R. arguendo that a decision RO is presented has no argument supporting a issued, 3.104(a) § “final when binding” conclusion that the actual revision of an still “agency allows for revision of the deci RO by decision can made the VA Cen- by “duly sion” appellate constituted au Office, tral plausible which is a interpreta- 3.104(a) (2001). § thorities”. 38 C.F.R. case.) tion of the events in this case, In this the Winton Salem RO deci sion was by twice review 3.105(b) § As to appellant’s argu- by Court, Board and was reviewed ment, recognize fails to before the here at issue was de 3.105, § by very language RO, by cided pursuant the Baltimore 3.104(a), options of three one specific remand instructions from the decision, revision of an RO the other two 3.104(a) Board. To the extent being revision appellate authorities or might preclude be read to the Baltimore pursuant revision C.F.R. 3.2600 revising the Winston-Salem RO (which, except II.D., in part as discussed (i.e., any decision in case because such below, is not relevant to the current inqui- by “duly revision must be done constituted ry). Thus, despite com- appellate authorities”), the ultimate revi plaints described above RO failed sion here was made the instant BVA to contact the decision, which, VA Central Office before adoption its of the RO’s revising finding, such would cure Baltimore Winston-Salem RO error. the revision of that RO decision was con- *8 3.104(a). Therefore, § sistent with the
Furthermore, the Court notes that were rejects appellant’s arguments the on appellant the prevail argument, to on this this revisability point. original (the the RO decision October RO) 1994 decision of Atlanta the that con- Argument B. “Received” cluded that all of the SSB had to appellant The argues also un 26) be would seem to be 1174(h)(2), § der 10 U.S.C. “received” just revision; impervious as to in other only means money that amount of words, the appellant the fails to account for received, appellant actually the fact that the sense of the Winston-Salem RO deci- having it, sion custody was itself a revision of of his prior a as SSB. Br. at 19- 1174(h)(2) a and that such revision provides: would run Section portion a of his nontaxa- (2) sepa- jecting to taxation has A who received member section, i.e., portion to or sever- the used under this ble VA pay ration benefits — amount). readjustment under pay pay pre-tax gen- recoup ance the SSB See law, States, of based any provision F.Supp. other Palm v. erally United be shall not in the armed forces (M.D.Ala.1995) service (stating, pri- 1314-15 receipt of deprived, by reason 1174(h)(2), of section or to amendment pay, or separation pay, severance such recoup “[ajlthough may it seem unfair to disability readjustment pay, by withholding separation pay taxable entitled compensation to which he is jtaxable disability compensation, total non[ De- by the under the laws administered clearly recoupment without tax relief was Affairs, there but partment of Veterans Congress”). intended disability from that shall deducted versus “entitled” distinction “received” equal the compensation amount to an If not account for this amendment. does separation pay, sever- total amount viable, Congress were this distinction readjustment pay re- pay, and ance the need to amend would had no [fjederal ceived, the amount of less taxes, the to account for provision pay income tax withheld from such SSB “entitled” pre-tax would amount, post-tax SSB would be added). 1174(h)(2) (emphasis § 10 U.S.C. The amendment the “received” amount. use of appellant argues section, explicit Congres- its to this with evidence and “entitled” is terms “received” recognition that taxes withheld sional intent to Congressional of a recouped, is inconsistent not be recoupment only the amount of SSB appellant’s proposed “received” (i.e., actually received the amount “entitled” distinction. versus him), rath- ultimately check written to Furthermore, appellant’s reading as initially than calculated er the amount (to the amount of the “received” mean 19-22. due to him. Br. at This SSB) eventually written check First, respects. as is flawed in several require read section would this Court indicates, amount inferentially statute 1174(h)(2) departs manner that unique a subject to There- of the SSB is taxation. other federal law. The from fore, an would “receive” (in adjustments concedes amount of the check released virtue $9,500) to his made him, which would reflect of his debts Army were satisfaction U.S. minimum, minus, at a “entitlement” 4; Reply Br. at see Army. See U.S. However, section tax withheld. (Bank. B.R. 477 Kelly, In re also 1174(h)(2) recoupment of exclusion M.D.Ga.1988) bankruptcy (describing, income any amounts withheld federal bonus recovery of reenlistment proceeding, was, statutorily extended taxes debt). 61(a)(12), Under U.S.C. 653; NDAA See FY 1997 SSB benefits. in is considered discharge of indebtedness legisla- (Although TEAC 1998 8208. Comm’r, IRS, See Gitlitz come. also inconclusive, amend- history tive 701, 148 206, 213, 121 S.Ct. U.S. may in order have been made ment (“[sjection 61(a)(12) L.Ed.2d whereby a veteran correct aberration *9 gen discharge of indebtedness SSB, states of his taxed on the entire amount income”). Sec gross in erally is included disability com- VA then had his nontaxable provides an exclusion tion 108 of title 26 pre- the recoup used pensation benefits of in- discharge for a amount, gross income thereby effectively sub- tax SSB (a) debtedness, if discharge duty but the Affairs a concomitant to ensure com (b) case; discharge pliance occurs in a title 11 the with the terms the remand”. (c) insolvent; taxpayer occurs when the is Stegall, 11 271. Vet.App. at discharged qualified the indebtedness is appellant’s Stegall argument fails (d) indebtedness; farm in the case of a First, appears several reasons. taxpayer corporation”, other than a “C the imply Stegall that there is a violation sole- discharged qualified indebtedness real- (R. ly because the October SSOC at property business indebtedness. 406) respond failed to to the Board’s re- 108(a)(1). U.S.C. None of these condi- mand directives. Br. at 16. Although the tions has in been shown exist this case. comply SSOC does not seem with the Indeed, appears it that the actual federal directives, Board’s prior remand in income tax this withheld case was issuance of that the SSOC Baltimore RO $6,000, original which was based on the letter, sent to appellant detailed dat- $30,000 amount. “entitlement” See R. at August explained ed its ac- tions and pages explana- included three appellant also concedes that tory charts. R. at 341-45. The RO also $9,600 was an amount he owed to the U.S. sent him a detailed RO decision following a Army. record, in There is no indication hearing. brief, R. at 389-92. that, nor it argued by parties, absent receipt acknowledges post- of the SSB, would not have hearing (although he does not ac- owed this amount Army. U.S. In- letter) (Br. knowledge August deed, attorney the veteran’s conceded 17), but states that the decision is inade- SSB, absent the veteran would have quate Hence, as to one BVA instruction. owed “personal out of finances”. R. our Stegall inquiry will focus on that as- Hence, at 378. sense that the veter- infirmity serted decision. (satisfaction receipt an’s of a benefit of the debt) receipt funds, is a form of The appellant he did asserts the Baltimore $9,500, just fact “receive” this adequate although as to com- 6). (R. argument, pliance described His instructions, with all remand other essentially which would have this question failed to 2” “answer (Br. hold that a “receipt” relief from debt is not Board’s remand instructions funds, law, has no basis federal and which stated as follows: reject we as well. The RO should determine what the Argument C. Stegall gross difference between the veteran’s
The appellant argues separation $30,058.67 also pay of ... and the Stegall West, there is a violation of by determined RO to be his (1998), ($20,755.14) separation the Board pay represents (i.e. failed to complied ensure that the RO determine what the repre- sents). the remand instructions the June If represents recoupment it 319-21). BVA decision In Stegall, department the service of a debt owed we held that “a remand this Court or due to previously the veteran having bonus, Board confers on the veteran or other received a reenlistment the RO claimant, law, as a right matter explain why this should not be compliance with remand part separation orders” and pay. that “a remand this Court or specifically put This should in writing imposes upon Secretary authority. of Veterans with supporting legal
431 $10,000 amount, then dictate the con- but R. at contends 321. The Furthermore, the level of clusion. detail question answer failed to RO decision instructions in the Board’s remand would ap- only conclude[d] that [the because “[i]t of the unnecessary if the intent Board $9[,500] be erroneously pellant refunded ‘was simply recalculate amount to were refunded tax when should been tax of income with- determine the amount payment, SSB which was withheld from held. $6,00[0]’ Br. at 17. appellant apparently arguing The is argument misrepresents
The appellant’s enforcing Board not the deci- erred decision explained The RO decision. RO: “Further sion of Winston-Salem procedural history and both the factual cursory review the investigation, even a (R. 389-91), explained this case file, produced would have veteran’s claims $9,500 represented. what the of the Statement Case the Winston-Salem why then addressed the RO deter- spelled for their deci- out the basis a properly mined that the re- ' argument Br. That is not sion.” at 17. “Money paid coupable amount: to other context; Stegall properly in the made (i.e., Department) pay sources Service accept one failure of Board to of the off is SSB the veteran’s debt ‘received’ not a appellant’s arguments is failure of provision law makes no veteran. The compliance its the Board to ensure with recoupment used to waiver of The RO own remand instructions. here pay debt.” R. at 392. the veteran’s of[f] instructions, complied the Board’s with makes sense Stegall and thus no error. there was If Board’s potential ground: one instruction, “the which stated that remand Reasons or D. Statement of Bases why this explain should not be should of All and Consideration separation part pay” of the Applicable Law added)), (emphasis at 321 were read required to consid The Board preclude any determination as to the new of record and to er all relevant evidence (this question amount of consider, decision, all discuss its below, U.D., part involved in but is provisions law “potentially applicable” question question; the same Ste- Derwinski, v. 1 regulation. Schafrath with, gall compliance not the purposes is (1991); Vet.App. see 38 U.S.C. directives). of, Board’s How- efficacy 7104(a), (d)(1); Principi, v. Weaver ever, reading would any such conflict Vet.App. 301, (per curiam or the fourth remand instruction der); 2 Vet.App. Sanden v. Derwinski Board: (1992). required is also The Board above have been [sic] After the action a written statement include its decision again the RO should review completed, findings for its of the reasons or bases currently appel- claim veteran’s issues fact all material conclusions on (or status, old late under the and new record; presented law on the amended) U.S.C.[ ] of 10 versions adequate enable statement must be 1174(h)(2). rendering its precise basis appellant to understand how it specifically note decision, as well as to for the Board’s at the amount the veteran’s arrived See 38 facilitate in this Court. review recouped. separation pay to be Brown, 7104(d)(1); Allday U.S.C. (1995); Gilbert v. Der Vet.App. incongruous that the R. at It seems (1990). winski, To 56-57 explain the RO to order would *11 Second, comply requirement, with this failed to consider 38 (collection § analyze by C.F.R. 1.912a offset credibility probative must and payments). appears VA benefit It evidence, value of the account for the evi after the initial determination the At- persuasive dence that it finds unpersua $30,000 lanta RO that proper sive, provide and rejec the reasons for its tion of material evidence favorable to that full recouped. amount was R. See Brown, the veteran. See Caluza v. 7 Vet. (Winston-Salem RO, setting proper (1995), curiam, App. per aff'd $20,750, payment amount at made (Fed.Cir.1996) (table); F.3d 604 Gabriel $9,500 appellant, difference to implying Brown, (1994); son v. 39-40 $30,000 that entire amount had been re- Gilbert, supra. case, In the instant couped). Following the Baltimore RO’s lia- concludes the Board has violat recalculation, bility-increasing therefore, 7104(a) ed its duties under sections overpayment there was an amount that the (d)(1) in separate two ways but related (We Secretary subjected recoupment.
that warrant remand to the Board for estimate this amount to be approximately readjudication. $3,500, $9,500 consisting of payment made appellant by the Winston- adjudication claim, its of this $6,000 Salem RO minus the withheld from Board failed to consider several potentially tax, the SSB as federal income applicable regulatory First, provisions. amount was calculated the Baltimore the extent to which the amount at issue in being subject RO as not recoupment.) case, i.e., this the amount that VA has To the extent fairly already veteran, recouped from the is clas classified as a part “debt” rather than (a sified as a “benefit” or “benefit claim” original statutorily-mandated offset un- determination that the Board failed to 1174(h)(2) (a der section determination make), the Board failed to consider 38 Board, again, make), i.e., failed to 3.105(h) § C.F.R. (detailing procedures ap 1174(h)(2) because that section amount had plicable for reduction or discontinuance already been in full and the benefits “where reduction or [such] discon $3,500 therefore, represented, a VA over- tinuance of benefits is warranted rea payment, § then 1.912a ap- would seem to son of information concerning received in ply, and the Board would have to ensure come”) 3.2600(d) (“[t]he § reviewer complied procedural VA with the safe- may grant sought a benefit in the claim guards provision. listed 3.105(b), but, notwithstanding except as Board, in failing to potential consider the (e) provided in paragraph of this section applicability provisions of the above three [(detailing prior revision of a decision on possibly applicable ones, other has error)], the basis of clear and unmistakable duty 7104(a), violated its under section see may not revise the a manner 7104(a); Weaver, Sanden, 38 U.S.C. that is less advantageous to the claimant Schafrath, supra, all duty and its under review”). than the decision under 7104(d)(1) section provide an adequate provision, if applicable, former would sub statement of reasons or discussing bases ject liability-increase decision to defi provisions, 7104(d)(1); such see 38 U.S.C. procedural safeguards, nite which have Caluza, Gabrielson, Allday, Gilbert, followed, seemingly not been whereas the Therefore, supra. all the Court will va- if provision, applicable, latter would bar cate the Board decision and remand the the actions of the Baltimore RO. readjudication. matter for *12 cess”). Moreover, above, perti- a review the
Furthermore, origi- stated Secretary regulations the Atlanta RO was nent shows determination of nal the appellant’s entire amount of procedural has established rather detailed ($30,000) proper amount to variety was in safeguards a situations (R. 26), and the Winston- at be re- may a claimant’s benefits figure this to a 3.105(e)-(i) RO recalculated duced, Salem see, e.g., 38 C.F.R. (R. 114). ($20,750) It amount lower (2001), is no indication that the and there had appealed appears applicability Board considered aha, inter a further seeking, this matter process For such to the instant context. this recalculation of amount downward in example, in cases which a reduction (i.e., $20,750 than seeking a less figure disability a service-connected rating of amount), in that he continued proper at- proposed, following procedure despite the fact that appeal matter taches: granted him RO had Winston-Salem of a the reduction evaluation Where most, all, but not of the recalculation he employa- disability service-connected sought. (February R. at 81 1998 had See and bility is considered warranted status (as decision, January RO R. NOD 1998 in a would result lower evaluation 78) subject arguing that correct compen- reduction or discontinuance of (Win- $16,000), 112-13 was made, currently a payments being sation recalculating the ston-Salem RO decision rating or dis- proposing reduction $20,750), recoupment as setting be prepared continuance will (July appeal 1998 123 Board facts reasons. forth all material decision). Winston-Salem beneficiary at his or will be notified result, however, after the income-tax- net the con- her latest address record of withholding by the recalculation mandated templated detailed action furnished (R. 1999 Court remand was therefor, 60 given and will be reasons $3,250 appellant’s liability. in the increase days presentation of additional It is well settled that veterans-bene pay- compensation evidence show system. system pro-claimant is a See fits pres- ments be continued at their Gardner, 115, 118, 115 v. 513 U.S. Brown provided ent otherwise level. Unless (1994) (stating, 130 462 S.Ct. L.Ed.2d (i) section, if of this additional paragraph statutory interpretation, “in in context peri- not received within that evidence is in the terpretive is to be resolved doubt od, rating action will taken final West, favor”); F.3d Hodge v. veteran’s discontin- the award will be reduced or (Fed.Cir.1998) (stating that day month ued the last effective “[tjhis Supreme court and the Court both 60-day period from the date which a that the character of long recognized the final beneficiary notice strongly veterans’ statutes benefits rating expires. action pro-claimant” describing uniquely 3.105(e); see 38 C.F.R. 38 C.F.R. also system of historically “the non-adversarial right to (detailing predetermina- § 3.105® veterans”); awarding benefits to Trilles by, inter hearing tion for those affected (2000) (describ West, Vet.App. 3.105(e)-(h)). alia, procedures under pro-claimant “the VA nonadversarial ing case, allowed this adjudication process”); Moore v. claims (R. at liability the veteran’s West, (Steinberg, increase 321) subsequently ratified pro-claim and then J., concurring) (describing “the 7). veteran, Thus, who increase adjudication pro- ant nature of the VA seeking reduction in his liabil the Board to address these issues on re- $3,250 increase; ity, mand. received instead a appears pro-
result to be at odds with the III. Conclusion claimant nature of the veterans-benefits analysis, On the basis of the above system. By ratifying this increase lia ROA, parties, and the submissions of the *13 bility, the Board essentially pro created a the Court vacates the Board decision and whereby cess the veteran had to take an remands the matter for expeditious fur risk, appeal i.e., at his own the risk that development ther readju- and issuance of a not might he not receive what he supported dicated decision by adequate requested might but that he up end in a bases, statement of reasons or see 38 position. worse procedures Where VA au 5103(a), 5103A, §§ 5107, 7104(a), U.S.C. Secretary thorize the reduce benefits (d), 7105; 1.912a, 3.105(e)-®, §§ 38 C.F.R. contexts, certain as do 38 C.F.R. 3.2600(d); 45,620, 45,630-32 Fed.Reg. 66 3.105(e)-(i), § such a reduction must be 29, 2001) (Aug. (amending 38 C.F.R. preceded by specific proce detailed and 3.159, § applicable); and Fletcher v. dural safeguards fully that fairly give and Derwinski, 394, (1991), 1 Vet.App. 397 all the claimant proposed notice of the reduc opinion consistent with this and accor tion and an opportunity to contest it. See dance with section 302 of the Veterans’ Brown, 553, also Vet.App. Sutton v. 9 569- Improvements 1994, Benefits Act of (1996) 70 (calling approach 103-446, 302, for unified 4645, § re Pub.L. No. 108 Stat. (found quiring note) (re appellant § advance notice to before 38 U.S.C. quiring Board Secretary provide considers evidence or “expedi issue not con RO). tious by sidered treatment” of claims procedure ap by No such remanded Court) BVA or the pears [hereinafter to have been followed in VBIA this case. 302], § Vargas-Gonzalez see v. Principi, emphasizes Court that it is not con 222, (holding 225-30 that cluding that under no circumstances could § applies VBIA 302 all elements of the Secretáry lawfully take the actions claim by Board), remanded Court or and that However, he has in this case. applicable with all regulation. law and See remand, provide must a full Allday, 7 Vet-App. remand, at 533-34. On (1) explanation authority its to increase appellant will be free to submit addi appellant’s liability juris (including its tional evidence argument and on the re so, diction to do as raised in the concurring manded claim in accordance with Kut (2) opinion), any prior protective whether West, scherousky 12 Vet.App. 372- procedures action, attached to such an (1999) order) (per curiam (concluding complied whether proce VA with those entitled, that an days until 90 7104(a), (d)(1); dures. See 38 U.S.C. postremand after Board mails notice to Weaver, Caluza, Gabrielson, Allday, San appellant, to submit additional evidence den, Gilbert, Schafrath, supra. all To or to request hearing on the extent the Secretary concludes appeal at which may submit new that he is authorized to create such an evidence), applicable and all regu law and “appeal-at-your-own-risk” scenario, lation. The Court notes a by remand heavy faces a explain burden to adequately this Court or the Board confers on an how such scenario comports with the appellant the right compliance to VA with pro-claimant nature the veterans-bene impos terms of the remand order and system. Therefore, fits the Board decision Secretary es on the duty a concomitant is vacated on this permit compliance basis as well to ensure with those terms. See Appeal July 1998 BVA Stegall, supra. June joint sought by parties remand captioned “Supplemental pleading the Court was for the sole Appellant” accepted ordered Brief of the refunding or- point purpose calculating no filing the Court at him, light briefing. the amendment such The Clerk dered 1174(h)(2) pendency ap- during pleading return this U.S.C. Court will claim, income the amount of federal tax pellant. A final decision Ap- will had from his SSB. the remand herein ordered been withheld following 12; 135-38, adverse, if Br. at R. at pellant’s see constitute new (amount 1174(h)(2) 143; equal only upon may appealed to U.S.C. separation pay, amount of Appeal a new to total inter filing of Notice *14 alia, less of federal in- days not later than 120 after the received amount Court pay shall date notice of Board’s new come tax withheld from that on which compensation); appellant. disability final mailed deducted from decision is to the West, 468, Act for Transportation Equity v. 11 472 also See Marsh see (1998). 105-178, 8208, § Century, 21st Pub.L. No. 107, (1998); 112 Stat. National De- AND REMANDED.
VACATED Authorization Act for Fiscal Year fense 104-201, 653, 1997, Pub.L. No. Stat. KRAMER, Judge, concurring: Chief (1996). 2422, argues appellant 14, I August in the vacatur concur therefore, that, the proper the issue of (Board 2000, Appeals Board of Veterans’ subject pre-tax of his that is amount SSB BVA) appel- and remand of the decision recoupment properly was not before the to however, separately, claim. I write lant’s 28, it its June Board when rendered either in this I that remand believe 1999, remanding his claim to the decision case be ordered at this time on 2000, 14, pres- August or its decision RO different basis. somewhat at ently appeal. Appellant’s on Br. 11-14. Court, appellant this appeal On to (I was note that the June 1999 remand for April did not appeal asserts that he that, in development that re- further 1998 determination the Winston-Salem RO, alia, mand, inter the BVA directed the (RO) the amount of regional VA office that arrived note how it had specifically to (SSB) pre-tax special separation his bonus recouped. R. at amount of SSB to be $20,755.14. subject to was 319-22.) The ultimate result those (Br.) 11; Appellant’s see Record Brief an increase Board decisions was (R.) as- appellant 111-14. The further subject recoup- amount pre-tax SSB record and the reflects serts ment. 31,1998, dealing Board, July in its decision to the question presented The initial assignment of dates with the effective disabilities, April 1998 Win- recog- here is whether the Court service-connected sub- ston-Salem determination pre-tax that the amount SSB nized recoup- pre-tax ject recoupment was not at issue (which $20,755.14 pre-tax RO ment was April Winston-Salem increased to $20,755.14 subsequently was had was determined July the Baltimore Ap- recouped. pre-tax SSB amount by the BVA the 11; and was affirmed see R. at 123. pellant’s Br. status appeal) appellate that, subsequent to asserts then the Board. properly and thus before this Court of his Notice filing with winski, (1990). regard, appear Thus, it does not 1 Vet.App. from the I (ROA) appeal record on August would vacate the (NOD) Disagreement filed a Notice of as decision appellant’s and remand the claim April 1998 Winston-Salem RO deci- readjudication on this basis. (filing sion. See 38 U.S.C. NOD West, appeal). Compare Collaro v. (Fed.Cir.1998) (as
136 F.3d 1308-09 appellant’s general NOD), and broad West, v. 136 F.3d 779-80 Ledford (Fed.Cir.1998) (as specific NOD). reflect,
and limited The ROA does however, that, previously when his case MAUERHAN, F. Appellant, Albert was before this on appeal, appel- joined joint lant in a motion for remand required applica- VA to determine the Anthony PRINCIPI, Secretary J. bility upon to and the effect his case of the Affairs, Appellee. Veterans 1174(h)(2), amendment of 10 U.S.C. No. 01-468. required amendment the deduction *15 pre-tax SSB the amount of federal United States Appeals Court of income tax withheld to determine the net for Veterans Claims. recouped. of SSB to be R. at 136-
37, 141; (February see R. at 143 Oct. granting
Court order motion to remand decision). vacating July 1998 BVA August 2000 decision presently on (in
appeal, “point[ed] out” es concluded)
sence April 1998 Win
ston-Salem regarding RO decision cor
rect amount of appellant’s pre-tax in a recoupment be used calculation was during
“rendered present the course of the and, therefore,
appeal” pursuant
appellate process, being was reviewed in However,
its decision. R. at 6. given that
the Board did not address the matters preceding
discussed paragraph so
concluding that this issue in appellate
status, I believe that the Board reached prematurely
this conclusion and thus failed provide an adequate statement of rea why
sons or bases as to it had the authori
ty accuracy consider the pre-tax SSB amount to recoup 7104(d)(1); See 38 U.S.C.
ment. Weaver
v. Principi, Vet.App.
(per order); Brown, Allday curiam (1995); Gilbert v. Der