# Burke v. Brown

> United States Court of Appeals for Veterans Claims · June 15, 1995 · 8 Vet. App. 376

URL: https://www.frixlaw.com/law-library/cases/6612861

## Case

- **Full name:** Patrick F. BURKE v. Jesse BROWN, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** June 15, 1995
- **Citations:** 8 Vet. App. 376; 1995 U.S. Vet. App. LEXIS 479; 1995 WL 364119
- **Precedential status:** Published
- **Opinion:** Concurrence by Steinberg
- **Judges:** Farley, Holdaway, Ivers, Kramer, Mankin, Nebeker, Steinberg
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6612861

## Opinion text

STEINBERG, Judge,
concurring:
This proceeding and the panel’s order stating that the vertigo claim is not a claim because it is not well grounded illustrates again the folly of Grottveit v. Brown, 5 Vet.App. 91 (1993), and its mischievous progeny and their counterintuitive notion that a claim is sometimes a “claim” and sometimes a “nonelaim”. See Sarmiento v. Brown, 7 Vet.App. 80, 83-84 (1994). As Judge KRAMER recently wrote, “[t]he only possible infer- *378 enees that can be drawn from [the statutory] language [of 38 U.S.C. § 5107 (a) ] are that there is such a thing as a claim that is not well grounded (not a nonclaim) and that there is such a thing as a claimant who is not entitled to assistance (not a nonclaimant)”. Sarmiento, 7 Vet.App. at 88 (Kramer, J., concurring in the result). 1
These issues are presently before the en banc Court in Edenfield v. Brown, 6 Vet.App. 432 (1994). See Edenfield v. Brown, 6 Vet.App. 432 (1994) (en banc order consolidating case with Smith (George) v. Brown, No. 92-1369). It is understandable that the appellant’s pro bono counsel is confused by the Court’s February 22, 1995, order and the Court’s caselaw, given the divergent and unsettled remedies applied by this Court upon finding that the Board of Veterans’ Appeals (BVA) has erred in finding a claim to be well grounded. His efforts to ensure full protection of his client’s interests are admirable.
Finally, in attempting to understand the significance of the Court’s unwillingness to apply in this case the Grottveit remedy of remanding for the BVA to vacate the underlying decision of the Department of Veterans Affairs regional office (RO), 2 the appellant may take solace in the fact that such a remand is unnecessary because an underlying RO decision is generally subsumed in the BVA decision reviewing it. See Landicho v. Brown, 7 Vet.App. 42, 52 (1994); 38 C.F.R. § 20.1104 (1994) (BVA decision affirming RO decision subsumes the latter decision).
. See also Layno v. Brown, 6 Vet.App. 465, 472 (1994) (Steinberg, J., concurring in part and dissenting in part); Green (John H.) v. Brown, 5 Vet.App. 83, 84-87 (1993) (en banc order) (Kramer and Steinberg, JJ., dissenting separately and jointly to denial of en banc review); Green (John H.) v. Brown, 4 Vet.App. 382, 384 (1993) (Steinberg, J., dissenting); McGinnis v. Brown, 4 Vet.App. 239, 244-46 (1993) (Steinberg, J., concurring in-part and dissenting in part); Aguilar v. Derwinski, 2 Vet.App. 21, 23-24 (1991) (Kramer, J., concurring).
. I believe the panel's clarification attempt is intended to indicate that because the vertigo claim is not well grounded, under Grottveitian illogic the underlying decisions of the Board of Veterans’ Appeals and Department of Veterans Affairs regional office are "nullifies]”, and thus the claimant will be allowed to "begin ... on a clean slate" if he resubmits the vertigo claim for adjudication — that is, he will not be required to submit the new and material evidence necessary in order to "reopen” a claim under 38 U.S.C. § 5108 . By not allowing a remand in this case because the vertigo claim has been declared a nonclaim by the panel, the Court has once again waved its magic wand and in essence "magically declarefd], amalgamating the best that ontology and alchemy have to offer, that [the] appellant 'did not [even] submit any claim, well grounded or otherwise'.” Sarmiento v. Brown, 7 Vet.App. 80, 87 (1994) (Kramer, J., concurring in the result).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6612861. Public record. Not legal advice.