noting, at note 2, page 86, long line of Court precedent holding where BVA had erroneously adjudicated a claim which the Court determines was not well grounded that BVA denial of the claim on the merits is not prejudicial to the veteran and should be affirmed by the Court
How later courts described this case
- noting, at note 2, page 86, long line of Court precedent holding where BVA had erroneously adjudicated a claim which the Court determines was not well grounded that BVA denial of the claim on the merits is not prejudicial to the veteran and should be affirmed by the Court
- Kramer and Steinberg, JJ., dissenting separately and jointly to denial of en bane review
- Kramer and Steinberg, JJ., dissenting separately and jointly to denial of en banc review
- Kramer and Steinberg, JJ., dissenting to denial of en banc review
Written by the judges who cited it.
The opinion
KRAMER, Associate Judge,
with whom STEINBERG, Associate Judge, joins, dissenting:
The majority may be deciding, albeit without directly so stating, an issue of such immense importance that en banc consideration is required on this ground alone. If the Court sets aside every decision of the Board of Veterans’ Appeals (BVA) rendered on the merits where the Court deter *85 mines that, because of a lack of new and material evidence, the underlying claim was improperly reopened, the Court’s action could result in reducing the benefit of an appellant who appealed a BVA decision which had awarded that appellant a benefit more than that awarded by a regional office (RO), but less than that which is sought on appeal to the Court.
For example, assume the case where the RO reopened a claim, awarding service connection and a 10-percent disability rating for a combat-incurred injury. The veteran appealed the rating to the BVA which increased it to 50 percent. The veteran then appealed to the Court asking for a higher rating. The Court determined that the claim should not have been reopened because new and material evidence had not been submitted. Under the rationale of the majority, the BVA lacked jurisdiction to decide the case on the merits and the BVA decision must be vacated, including, of course, the award of the 50-percent rating. Furthermore, the RO’s award of service connection with a 10-percent rating would now hang in an uncertain state of limbo, unless the Court directed the BVA to vacate the RO decision as well. See McGinnis v. Brown, 4 Vet.App. 239 (1993) (Stein-berg, J., concurring in part and dissenting in part). A potential result so far reaching as this should not be submerged in an opinion couched only in the garb of procedural irregularity.
Furthermore, pursuant to the Veterans’ Judicial Review Act, Pub.L. No. 100-687, 102 Stat. 4105 (1988), the Secretary of Veterans Affairs (Secretary) is prohibited from seeking review in the Court, 38 U.S.C.A. § 7252 (a) (West 1991), and an appeal may be filed only by “a person [other than the Secretary] adversely affected by [the] action” taken in a final decision of the BVA, 38 U.S.C.A. § 7266 (a) (West 1991). Given these provisions and the silence of the legislative history, the Court’s own jurisdiction to set aside a BVA decision which is favorable to an appellant is itself questionable. See 134 Cong.Rec. S16,632-68, H10,333-61 (1988), reprinted, in part, in 1988 U.S.Code Cong, and Admin.News (102 Stat.) 5834-66.
For the foregoing reasons and those set forth in Judge Steinberg’s dissenting statement, in which I join, en banc review should be granted.