Secretary conceded that 38 U.S.C. § 5107 duty to assist not satisfied
How later courts described this case
- Secretary conceded that 38 U.S.C. § 5107 duty to assist not satisfied
Written by the judges who cited it.
The opinion
ORDER
PER CURIAM.
On October 20, 1995, the Court issued a memorandum decision vacating the decision of the Board of Veterans’ Appeals and remanding the matter for further adjudication. On November 2, 1995, the appellant filed a motion for panel review. On consideration of the foregoing, the pleadings of the parties, and the record on appeal, it is by the panel
ORDERED that the appellant’s motion for panel review is DENIED. In this case, the Secretary has confessed that he fell short in his duty to assist the appellant. He has, thus, asked for a remand in order to have the appellant examined to determine the verity of his asserted unemployability. With additional facts to be developed, it would be inappropriate for the Court to make the Secretary a prisoner to an undeveloped record. Since the motion to remand is in good faith and there is no evidence that resolution of this claim has been unreasonably delayed, 38 U.S.C. § 7261 (a)(2) is not implicated. Under these circumstances, remand is the appropriate remedy. Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (where the record is inadequate, remand, rather than reversal, is the appropriate remedy).
Although the Court’s denial of the motion for review is a panel disposition, “it does not make the single-judge decision — which led to the motion for review — a panel decision constituting binding precedent under Bethea v. Derwinski, 2 Vet.App. 252 (1992).” Morris v. Principi 3 Vet.App. 484, 485 (1992). The single-judge decision for which the appellant sought review is still the controlling law of this particular case.