Mahl v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 99-1678

EVERETT C. MAHL, APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before FARLEY, HOLDAWAY, and STEINBERG, Judges.

ORDER

On December 7, 2000, the Court issued an order granting the Secretary's November 13,

2000, motion for remand. The July 30, 1999, decision of the Board of Veterans' Appeals,

which denied the appellant's claim for entitlement to a rating in excess of 10% for post-

traumatic stress disorder and for a total disability rating based on individual unemployability,

was vacated and the matter remanded as required by the recent enactment of the Veterans

Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000).

On December 27, 2000, the appellant filed a motion for reconsideration and for a panel

decision, urging the Court to rule on the appellant's allegations of error which were unrelated

to the VCAA.

It has been the practice of this Court from the outset that, as a general rule, when an

undoubted error requires that the Court order a remand, the Court will not address other putative

errors raised by the appellant that are not necessary in effecting the proposed disposition. In short,

if the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors

that would result in a remedy no broader than a remand. In Best v. Principi, __ Vet.App. __, No. 99-

1144 (May 15, 2001) (per curiam order), the Court noted that it generally decides cases on the

narrowest possible grounds, and therefore is not required to rule upon other allegations of error in

effecting a remand resulting from the VCAA's passage. That order also made clear that a judge may,

at his discretion, determine that, while it is not necessary, it may be appropriate to address multiple

allegations of error in remanding a case. See also Dunn v. West, 11 Vet.App. 462, 467 (1998) (the

Court's remand of the appellant's PTSD claim under one theory mooted the remaining theories that

would also mandate a remand of that claim); Aronson v. Brown, 7 Vet.App. 153, 155 (1994) (where

issue becomes moot, the Court is divested of jurisdiction to consider it).

When this Court has, by single judge or otherwise, broadened its opinion beyond what is

required, it has been the exception, not the rule. The Court's practice of limiting its opinions to the

issue necessary to effect a remand is consistent with the jurisdictional statute under which the Court

operates. That statute states that "in any action brought under this chapter, the Court of Appeals for

Veterans Claims, to the extent necessary to its decision and when presented shall . . . (1) decide all

questions of law." 38 U.S.C. § 7261(a) (emphasis added). Of course, within the statutory

definition of "to the extent necessary," there may be circumstances that would cause the Court,

in its discretion, to touch upon another issue, whether raised by the appellant or not. However,

such matters will be rare and will fall under the rubric of the "Court's discretion."

Considering only the issues necessary to the disposition of the case, or, in other words,

deciding a case on the narrowest possible grounds, is the tradition in general appellate practice. See,

e.g., United States v. Shipsey, 190 F.3d 1081, 1088-89 (9th Cir. 1999) (because the court held that

the district court erred by constructively amending the theft counts in the indictment, requiring

reversal and a remand for a new trial, the court need not reach the appellant's remaining challenges);

Umpleby v. Potter & Brumfield, Inc., 69 F.3d 209, 215 (7th Cir. 1995) ("While there were many

procedural problems that occurred below, including the arguably erroneous admission of much

evidence, we need not reach these issues in light of our decision to remand for a new trial"); United

States v. Young, 17 F.3d 1201, 1205 n.9 (9th Cir. 1994) ("Because we find that [the appellant] is

entitled to a new trial, we need not reach his claim that the district court abused its discretion in

refusing to hear his motion to suppress the evidence found in his truck. . . . [The appellant] may

renew his claim on remand"); Dakota Industries, Inc. v. Ever Best Ltd., 28 F.3d 910, 914 (8th Cir.

1994) ("In light of our reversal and order of a new trial, we need not consider [the appellant's]

arguments of other jury instruction and trial errors").

The statute and cases cited above which counsel judicial restraint are not only good law,

but also make good, common sense. The new adjudication ordered by this Court is just that

– a new adjudication. It will, necessarily, be conducted in an entirely different context legally

and perhaps factually as well. The putative errors that the appellant raised before this Court

concerning the "old" adjudication can be reasserted if he still believes that the "old errors" have

been perpetuated and are relevant in the context of the new adjudication. The briefs before this

Court will, presumably, be available. The adjudicators may then consider these matters for

whatever value they may have, in the context of the new adjudication. If the appellant still

believes error has been committed, he may then present that issue to this Court by way of an

appeal. See Kutcherousky v. West, 12 Vet.App. 369, 372 (1999). The Court will continue the

practice it has followed, which is consistent with its jurisdictional statute and appellate practice

elsewhere; we will render our decisions on the narrowest possible grounds.

If this Court were to "lay down the law," as the dissent suggests we should, given the

different factual and legal context in which the new adjudication will take place, such an opinion

would be nothing more than advisory, amounting to awarding declaratory relief, which we are

not authorized to do. Nagler v. Derwinski, 1 Vet.App. 297, 306-07 (1991). Even if we had

jurisdiction to consider the appellant's non-VCAA arguments (but see Aronson, supra), we must

be ever mindful of the "unwisdom of venturing an advisory opinion." In re Smith, 7 Vet.App.

89, 94 (1994) (J. Steinberg, dissenting); see also Waterhouse v. Principi, 3 Vet.App. 473, 474 (1992)

(in order for there to be a case or controversy, the Court "must have the ability to resolve the

conflict through the specific relief it provides").

2

Judge Steinberg's insertion of an EAJA rational for broadening our decisions beyond what

is necessary to effect a disposition on the merits is also troubling. He would do this by labeling some

allegations of error "colorable" and the rest, presumably, "non-colorable." Leaving aside that such

labeling seems to be his own invention with a basis in neither statutory nor case law, it seems most

unusual that a court would litigate the merits of a case, even partly, for potential EAJA purposes.

In fact, to do so would be to render a decision, at least in part, as to an issue (EAJA) neither

"presented" nor "necessary," to use the words of our jurisdictional statute. Moreover, such an

adjudication would trigger two evils. By considering only "colorable" allegations of error, as Judge

Steinberg would have us do, our action could and would be construed as an invitation to file an

EAJA application, with assured approval, where "colorable" arguments are found or precluding

successful EAJA applications where the arguments are found "non-colorable." Surely it must be

clear that in the labeling process which finds certain issues "colorable" (meritorious) and others

"non-colorable" (non-meritorious), the Court is actually adjudicating both issues with consequences

for both EAJA (assuming that the dicta in Cullens v. Gober, 14 Vet.App. 234 (2001), referred to in

the dissent, ever became the law) and, incidentally, for the new adjudication at the administrative

level. Our treatment of an issue as "non-colorable" could be construed by an adjudicator as a

decision on the merits that would preclude its consideration in the new adjudication. This would be

unwarranted meddling in the new adjudication and, insofar as EAJA is concerned, would be an

anomalous action for supposedly neutral judges to be taking at a time when there hasn't even been

an EAJA application. The other evil is that it would surely encourage pleadings that were framed

more for EAJA purposes rather than for obtaining the underlying relief for the veteran. The EAJA

tail would be once again, as happens all too often in this Court, wagging the merits dog.

Upon consideration of the foregoing and the record on appeal, it is

ORDERED, by the single judge, that the appellant's motion for reconsideration is

DENIED. It is further

ORDERED, by the panel, that the appellant's motion for a panel decision is DENIED.

DATED: June 7, 2001 PER CURIAM.

STEINBERG, Judge, dissenting: I agree that this case should be remanded for the Board of

Veterans' Appeals (BVA or Board) to consider potentially applicable provisions of the Veterans

Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA).1

However, although the Court has latitude as to whether to consider contentions not raised to the

1

See Holliday v. Principi, 1 4 V et.A p p . 2 8 0, 286 (2001) (h oldin g th at V eterans C laim s A ssistance A ct of

2000, P ub . L . N o. 106-475, 114 S tat. 2096 (N ov. 9, 2000) (V C A A ), is "poten tially applicab le to claim s pen d in g

on th e date of th e V C A A 's en actm en t"; th at "th e C o u rt m u st avoid cuttin g off an appellan t's righ ts un der th e

V C A A b y prem atu rely in jectin g itse lf in to th e [D epartm en t of V eteran s A ffairs (V A )] ad ju dication process an d

m aking d eterm in ation s on issues th at w ere n ot addressed by V A in th e first in stan ce"; an d th at, th erefore, "at least

at th is tim e . . . th is C ourt m ay n ot determ in e in th e first in stan ce th e applicability of th e V C A A " to an appellan t's

claim ), mot. for recons. denied, __ V et.A pp. ___, 2001 W L 430599 (A pr. 27, 2001) (per curiam order).

3

Board, see Maggitt v. West, 202 F.3d 1370, 1378 (Fed. Cir. 2000), I disagree with the Court's refusal

to address certain of the appellant's arguments that are not predicated on the potential applicability

of the VCAA. I do acknowledge that the majority's position is well presented and reasonable and

has some precedential support, but only in terms of how best to exercise our judicial discretion.

I. The Court Should Address All Colorable Arguments of Prejudicial BVA Error

A. Addressing Multiple Grounds for Remand

is Within Court's Proper Appellate Role

The appellant has made forceful and colorable arguments that the Board's adjudication of his

claim contained errors that are capable of repetition on remand.2 In such a situation, I believe that

this Court, to which a claimant for Department of Veterans Affairs (VA) benefits has an appeal of

right, see 38 U.S.C. § 7252, of a BVA decision by which he or she is "adversely affected" as long

as he or she files a timely Notice of Appeal, 38 U.S.C. § 7266(a), has a responsibility to examine

those errors asserted as separate bases for remand, and if the Court finds the appellant's assignment

of error meritorious and the errors material then to so hold. See 38 U.S.C. § 7261(a) (mandating that

this Court "shall . . . decide all relevant questions of law, interpret constitutional, statutory, and

regulatory provisions, and determine the meaning or applicability of the terms of an action of the

Secretary"). Unfortunately, in this case and in many other dispositions, this Court has been declining

to examine those issues on the grounds that the arguments in question, even if successful, could not

result in more than a remand, and that the appellant is free to present those issues to the Board as part

of the VCAA remand proceedings. In so doing, the Court in effect returns the case to an appellant

who, even if she or he was represented before this Court, might not be represented before the Board.

Such potential lack of representation, coupled with the fact that it could be years before the appellant

would have the opportunity to raise the arguments before the Board in the context of the remand

proceeding (which might require a prior remand to a VA regional office for evidentiary development,

for example), could well impair an appellant's ability to advocate those legal arguments effectively

in the administrative process.

It is undeniable that, as noted in the December 2000 single-judge order remanding this

appeal, on remand the appellant will be free to submit additional evidence and argument on the

remanded claim. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).

However, it is equally true that if the Court were to issue a decision holding that certain errors had

occurred in the BVA's adjudication, the possibility that the Board would, on remand, repeat those

same errors would be markedly reduced. Cf. Stegall v. West, 11 Vet.App. 268, 271 (1998) (remand

by this Court confers on appellant right to VA compliance with terms of remand order and imposes

duty on Secretary to ensure such compliance). In contrast, a refusal to examine those arguments

2

T h e ap pellan t asserts, in ter alia, that the B oard of V eterans' A p peals (B oard or B V A ) faile d u n d er

38 U .S .C . § 7 10 4(a) to consider probative eviden ce in sup port of h is claim (B rief (B r.) at 15 -18 ); m isch aracterized

th e con ten ts of an O ctob er 1997 exam in ation report an d of S ocial S ecu rity D isab ility record s (B r. at 18-21); an d

failed to con sider adequately th e ben efit-of-th e-doubt rule set forth in 38 U .S .C . § 5107(b ), as it existed at th e tim e

of th e B oard decision , an d th e provision s of 38 C .F.R . § 4.7 (2000) (B r. at 21-23).

4

could very well force the appellant to litigate for a second time before us issues identical to those

presented in the instant appeal -- an appeal over which we clearly have jurisdiction -- in order to

obtain a decision from this Court regarding those issues. Such a process would inevitably require

the appellant to invest many more months and perhaps years of his life -- as well as, possibly,

attorney fees -- in order to obtain a decision or decisions that he could and should get from us now

if his arguments are valid.

I believe that it would be to the benefit of both the parties and the system of claims

adjudication and judicial review for the Court to act to help avoid such delay and repetition where

Board errors that may have affected the outcome of the Board decision and are reasonably

susceptible of repetition on remand are presented to the Court. Cf. Dambach v. Gober,

223 F.3d 1376, 1381 (Fed. Cir. 2000) (stressing need for certain cases "to be concluded" and

suggesting that this Court has authority to "set a deadline by which veteran's case will be

concluded"). Moreover, a precedential opinion of this Court recognizing the Board's errors and

ordering their correction on remand would have applicability to every other case in which a claimant

is similarly situated.

B. Limitation to Consideration of Colorable Arguments for Remand

I have a twofold rationale for my position that the Court should review an appellant's

colorable non-VCAA-based arguments that would lead to a remand to the Board independent of the

VCAA. First, on remand the Board will be required to readjudicate the claim in light of the

enactment of the VCAA and compare that result to the result that the appellant should have received

prior to the enactment of the VCAA. See Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) ("where

the law or regulation changes after a claim has been filed or reopened but before the administrative

or judicial appeal process has been concluded, the version mo[re] favorable to the appellant should

apply unless Congress provided otherwise or permitted the [Secretary] to do otherwise and the

Secretary did so"); see also Holliday v. Principi, 14 Vet.App. 280, 286 (2001) (holding, in context

of remanding claim for readjudication consistent with VCAA, that "there can be no question that

Congress, which is presumed to be aware of that opinion and its progeny at the time of enacting the

VCAA, clearly did not provide the specificity required by Karnas to disavow retroactivity"), mot.

for recons. denied, __ Vet.App. ___, 2001 WL 430599 (Apr. 27, 2001) (per curiam order). If the

appellant can show that the BVA erred materially under pre-VCAA law, then it seems to me that in

most cases the Court should order the BVA to correct that error in its readjudication of the claim

under pre-VCAA law prior to making the required Karnas determination as to which law is more

favorable.

Second, as to my rationale for the Court's reviewing only arguments that would produce a

remand for the appellant (as opposed to an affirmance of the BVA's pre-VCAA decision), I believe

that it is unwise as a policy matter, and may even be ultra vires, for the Court, before the Board has

considered the effect of the VCAA, to engage in judicial review that would, by affirming the BVA

decision on appeal regarding its pre-VCAA denial of the benefit sought, prevent VA from awarding

the benefit sought on remand based on pre-VCAA law. Cf. Nolen v. Gober, 222 F.3d 1356, 1360

5

(Fed. Cir. 2000) (holding that this Court cannot vacate a VA determination favorable to a claimant

because by making such a determination, VA "has waived any further challenges on the issue");

Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000) (holding that VA must adjudicate all

possible legal bases for award of service connection and Court cannot affirm BVA decision denying

such award on one ground when another ground remains open); Sachs v. Gober, 14 Vet.App. 175,

179 (2000) (VA has duty to adjudicate all possible bases for award of dependency and indemnity

compensation (DIC) when presented with claim for DIC that is well grounded on one basis).

C. Other Considerations

Furthermore, I do not believe that we should be blind to the potential pitfalls that the Court's

approach will have in the case of a represented appellant in the event of a subsequent application for

attorney fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(2)(F)

(EAJA). These pitfalls emerge starkly from the debate between the dueling separate concurring

opinions in Cullens v. Gober on the question of the wisdom of extending the Court's holding there

beyond the context of an EAJA case where the merits appeal was dismissed as moot as a result of

the parties' settlement agreement; the Court held there that it "can, and must, look beyond the

[m]otion [to dismiss because of a settlement between the parties], [joint a]greement, and Court order

[granting the motion to dismiss] to determine whether the position of the United States at the

administrative level was substantially justified." Cullens, 14 Vet.App. 234, 241 (2001) (en banc).

Compare id. at 248-50 (Kramer, C.J., concurring) (agreeing with standard set forth in majority

opinion "with respect to settled cases . . . [, but opining] that that standard is not appropriate in cases

where there is a Court remand"), with id. at 244-48 (Farley and Ivers, J.J., concurring) (proposing

that majority holding ought to be extended based on assertion that Court's consideration of only

content of, "e.g., a joint motion to remand" as "determinative" of question of whether Secretary's

position was substantially justified "is inconsistent" with Supreme Court precedents).

If Judge Farley's concurring view in Cullens prevails, and the Court ultimately determines

that post-merits-stage review of the record of the merits litigation is necessary at the EAJA stage in

order to determine whether the Secretary's position was substantially justified, it would seem to

behoove the Court as to arguments presented by an appellant at the merits stage to undertake a

review of such arguments at the time that those arguments are presented, as part of the merits stage

rather than after the issuance of the Court's mandate on the final disposition of the merits of the case

by the Court. Otherwise, we would be confronted with the anomaly that the Board might not be

bound in readjudicating the case by decisions made as to the merits of the BVA's prior decision (but

not as part of the Court's review of the BVA decision) long after the case has been remanded to the

Board by the Court and perhaps even after some adjudication on remand had already taken place.

Such post-facto decisions would appear to me to be "advisory" vis-a-vis the merits of the BVA

decision in question because such decisions are made after the Court's review of the merits is

6

completed. See Aronson v. Brown, 7 Vet.App. 153, 169-70 (1994) (Steinberg, J., concurring); In re

Motion of Smith, 7 Vet.App. 89, 93-94 (1994) (en banc order) (Steinberg, J., dissenting).3

I want to stress that what result the Court reaches on the merits of a case should not be

influenced by any consideration of whether or not an EAJA application will ultimately be filed. The

above-described complication merely reinforces my belief that if we are presented during the merits

litigation with BVA adjudication errors we should generally hold them to be such as part of the

merits review of the appeal. In the case of a pro se appellant, I believe that the points set forth in the

first five paragraphs of this dissent compel the position that I have taken herein. Hence, the practice

I would follow would not be, notwithstanding the majority's assertion to the contrary, the "EAJA tail

. . . wagging the merits dog."4 Ante at __, order at 3.

II. The Court's Practice of Addressing Multiple Grounds for Remand

and Jurisdiction to Do So

The majority here appears to articulate a maxim that once the Court identifies "an undoubted

error" made by the Board, the Court generally should not consider any other Board errors. As I said

at the outset of this dissent, such a general guideline for the exercise of judicial discretion is not

unreasonable, although it is not one that I would follow without regard to the situation -- and would

not follow in this case. However, the majority goes on to cloud the situation by seeming to premise

its viewpoint on some kind of jurisdictional basis. If the majority does not wish to raise a

jurisdictional barrier, why does it cite to Dunn v. West, 11 Vet.App. 462, 467 (1998), with the

parenthetical explanation: "[T]he Court's remand of the appellant's PTSD claim under one theory

mooted the remaining theories that would also mandate a remand of that claim" (ante at __, order

at 1), followed immediately by a cite to Aronson, 7 Vet.App. at 155, with the following

parenthetical: "[W]here issue becomes moot, the Court is divested of jurisdiction to consider it"

(ante at __, order at 1), and then later say: "Even if we had jurisdiction to consider the appellant's

non-VCAA arguments (but see Aronson, supra)" (ante at __, order at 2)? The imposition of any

such dramatic limitation on this Court's jurisdiction would be a seriously flawed approach. As the

Supreme Court has just stressed in a not unrelated context:

3

It is, in deed, iron ic th at m y colleagues an d I are, in effect, each suggestin g th at th e approach of th e oth er

w ould result in disposition s th at could b e, in a sen se, advisory in n ature. A lth ough I do n ot accept th at

ch aracterization of m y approach , I believe th at th e C ourt is on far soun der groun ds in decidin g a m e rits issue at

th e tim e of th e m e rits litigation , w h en th e d isposition can affect th e m erits ou tcom e on rem an d , th an in d ecid in g

th a t grou nd on ly for p u rp oses of litigation u nder the E q u al A ccess to Ju stice A ct, 28 U .S.C . § 24 12(d)(2)(F)

(E A JA ).

4

In all can dor, of course, I m ust ackn ow ledge th at a represen ted appellan t prob ab ly h as a better ch an ce

of successfully p resen tin g a n on -V C A A groun d for rem an d. T h at is, after all, w h at coun sel are for -- to m ake th e

best argu m en ts for th eir clien ts. H en ce, it is really "th e attorney-rep resen tation tail w agging th e m erits dog".

W h eth er or n ot E A JA fees w ould follow from su ch a su ccessful n on -V C A A argum en t w ould depen d on th e

provision s of E A JA law in 28 U .S .C . § 2412(d ) an d our caselaw . See, e.g., Cullens v. Gober, 14 V et.A p p. 234, 237,

240 (2 001) (en ban c) (outlin in g basic E A JA eligibility and aw ard criteria).

7

"It is well settled that a defendant's voluntary cessation of a challenged practice does

not deprive a federal court of its power to determine the legality of the practice"

unless it is "absolutely clear that the alleged wrongful behavior could not reasonably

be expected to recur."

Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources,

__ U.S. __, __, No. 99-1848, 2001 WL 567728, at *6 (May 29, 2001) (quoting Friends of Earth, Inc.

v. Laidlaw Environmental Service (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotation marks

and citations omitted)).

A. Longstanding Court Precedent Addressing Multiple Remand Grounds

The first and most obvious flaw in the majority's position is the bald assertion, with no

supporting authority, that it "has been the practice of this Court from the outset that, as a general rule,

when an undoubted error requires that the Court order a remand, the Court will not address other

putative errors raised by the appellant that are not necessary in effecting the proposed disposition."

Ante at __, order at 1. A simple perusal of the Court's precedential opinions demonstrates that this

Court has never articulated or followed a "one-remand-ground per customer" practice. From the

beginning, the Court has issued opinions that articulated multiple grounds for remand, as well as

opinions that provided guidance, separate and apart from the basis for remand, to the Board as to its

readjudication of the remanded claim.5 Judges of this Court have continued to produce such

opinions, and the members of the majority here are no exception to this practice.6 For example, as

5

T h ere are several opin ion s publish ed in V olum e 1 of West's Veterans Appeals Reporter in w h ich o n e o r b o th

o f th e ju d g e s in th e m ajo rity h e re jo in e d th at eith er assign ed m ultiple errors to th e B oard or provided w h at w ould

appear to con tain an "advisory op in io n " un der th e ration ale set forth by th e m ajority today. See, e.g., Schafrath

v. Derwinski, 1 V et.A pp. 589, 591 (1 991) ("[t]h e B V A decision con tain s four errors: (1) failure to apply applicable

regulation s . . . ; (2 ) failure to provide reason s or bases for aspects of its decision . . . ; (3) failure to obtain certain

req uested V A m edical records . . . ; an d (4) failure, on its ow n , to obtain prior treatm en t records an d to order a

con tem poran eous m edical exam in ation "); Schaper v. Derwinski, 1 V et.A pp. 430, 434-37 (1991) (rem an din g for B V A

to con sider validity of debt an d als o fin din g error as to retroactive release of liability "assum [in g] th at th e debt w as

valid"); Martin v. Derwinski, 1 V et.A pp. 411, 412-13 (1991) (C ourt rem an ds d ue to B V A 's failure to con sider both

38 C .F.R . §§ 3.310(a) an d 4.59); Ferraro v. Derwinski, 1 V et.A pp. 326 (1991) ("[t]h e C ourt h o ld s th at th e B VA d id

n o t p ro vid e ad e q u ate re as o n s o r b as e s . . . . [an d t]h e C ourt fu rth e r h o ld s th at VA faile d to as s is t appellan t in

gath erin g en ough in form ation to m ake an adequate determ in ation of h is claim an d , fu rth e r, th at th e B VA faile d

to co n s id e r ap p e llan t's claim u n d e r th e crite ria fo r n o n - s e rvice - co n n e cte d p e n s io n " (em ph asis added)).

6

In addition to th e 14 V et.A pp. cases cited in n ote 8, infra, m em bers of th e m ajority in th e in stan t case

h ave w ritten or join ed in a vast n um ber of opin ions th at rem anded a claim based on m ore th an on e B oard error

or th at provided addition al in struction beyon d th e rem an d groun d. See, e.g., Ralston v. West, 13 V et.A p p. 108, 113

(1999) ("A fter review in g th e eviden ce, th e C ourt w ill accept th e S ecretary's con cession th at a rem an d is appropriate

for th e B oard to provide adequate reason s an d bases for its decision w ith out securin g a m edical opin ion . . . .

Fu r th e r m o r e , th e B oard is required to discuss each of th e criteria foun d in 38 C .F.R . § 3.352 to determ in e if th e

veteran m et th e requirem en ts for aid an d atten dan ce an d h ouseboun d or 'perm an en tly bedridden ' ben efits."

(em ph asis added)); Falk v. West, 12 V et.A pp. 402, 405 (1999) (after assign in g B V A error con ced ed by Secretary,

C ourt stated th at its "an alysis can n o t en d th ere" (em ph asis added), an d discu ssed "a furth er record deficien cy";

n oted error as to B oard's failure to con sider "th e equipoise doctrin e"; an d "recom m end[ed] that du e attention be

8

of this writing, in the West's advance sheets for the most recent volume (Volume 14), 19 cases

remanded claims to the Board and in 9 of those the Court either provided more than one basis for

remand or provided instruction beyond the narrow remand ground.7 Moreover, the judges who are

in the majority participated in 6 of those 9 very recent cases.8

As to the majority's assertion that it "is the tradition in general appellate practice" to decide

a case on the "narrowest possible grounds", ante at __, order at 2, I note that the majority lacks the

authority to make any such holding because the Court has, as shown above, frequently issued

opinions that are at odds with any such "narrowest possible grounds" rule. See Bethea v. Derwinski,

given to 38 U .S .C . § 1154(b ) upon readjudication "); Pond v. West, 12 V et.A pp. 34 1, 34 5-46 (19 99 ) (h oldin g th at

B oard failed to consider certain eviden ce an d breach ed th e duty to assist); Spurgeon v. Brown, 10 V et.A p p. 194, 196-

99 (1997) (rem an din g d ue to in adequate statem en t of reason s or bases an d failure to com ply w ith 38 C .F.R .

§ 3.159); Hayes v. Brown, 9 V et.A pp. 67 , 73 -74 (19 96 ) (rem an din g du e to in adequ ate statem en t of reason s or bases

an d due to violation of duty to obtain certain records).

In deed, in a case decided on M arch 21, 2001, on e o f th e judges in th e m ajority, after h oldin g th at a

"rem an d is requ ired " for "read ju dication in ligh t of th e V C A A " as to a certain claim (for G h on 's com plex), w en t

on to poin t out a specific B V A adjudication m istake as to th at claim , as follow s:

Furth er, in adjudicatin g claim s, th e B o ard is required to base its decision s upon all

evid en ce an d m aterial of record an d to con sid er all applicab le provision s of law an d regu lation .

38 U .S .C . § 7104(a); see also 38 C .F.R . § 3.303(a) (2000). T h e B oard m ust provide an adequate

w ritten statem en t of th e reason s or bases for its fin din gs an d con clusion s on "all m aterial issues

of fact or law presen ted on th e record." 38 U .S .C . § 7104(d )(1); see also Gilbert v. Derwinski,

1 V et.A pp. 49 , 56 -57 (19 90 ). T h e C ourt agrees w ith th e appellan t th at in den yin g an in creased

ratin g for G h on 's com plex, th e B oard erron eously failed to discuss a M ay 19 98 V A m edical

opin ion . . . .

Williams v. Principi, N o. 99-2255, 2001 W L 282669, at *2 (V et. A pp. M ar. 21, 2001) (single-judge order).

7

See Holliday, 14 V et.A pp. at 2 00 (h oldin g th at "all provision s of th e V C A A are poten tially applicable to

claim s pen din g on th e date of th e V C A A 's en actm en t"); Woods v. Gober, 14 V et.A pp. 214, 218-23 (2000) (C ourt

rem an ds claim because presum ption of regularity w as reb utted (part II.A .) an d for violatio n o f Stegall v. West,

11 V et.A pp. 268 (1 998) (part II.B .)); Sachs v. Gober, 14 V et.A p p. 175, 180 (2000) (C ou rt orders B oard to tak e

certa in action s on ly if B oard, on rem an d, fin ds certain facts to be true), superseded in part by Sachs v. Principi,

14 V et.A pp. 298 (2 001) (vacatin g B oard decision in ligh t of en actm en t of V C A A ); Nolen v. Gober, 14 V et.A p p. 183,

184 (2000) (assign in g error as to duty-to-assist violation an d as to failure to apply 38 U .S .C . § 1154(b) properly);

Campbell v. Gober, 14 V et.A pp. 142, 144 (2 000) ("[o]n ce th e B oard determ in es th at a claim is w ell groun ded . . .

th is C ourt m ust address on its m erits an y argum en t th at th e S ecretary failed to fu lfill th e duty to assist" (em ph asis

added)); Timberlake v. Gober, 14 V et.A pp. 122, 131-35 (2 0 0 0 ) (vacatin g and rem andin g for consideration of

38 U .S .C . § 1318 an d providin g in struction to B V A if it fin ds th at section 1318 applies to rem an ded claim ; also

n otin g th at C ourt "n eed n ot address in d e tail th e rem ain in g argum ents" raised by th e appellan t an d briefly

addressin g th ose argum en ts (em ph asis added)); Stone v. Gober, 14 V et.A pp. 116, 118-21 (2000) (rem an din g due to

inadequate statem en t of reason s or bases an d due to violation of duty to assist, an d th e n con siderin g "add ition al

argum en ts raised in th e appellan t's brief"); McCormick v. Gober, 14 V et.A pp. 39, 50 (2000) (rem an din g w ith orders

to B V A to correct th ree separate an d d istin ct errors, each of w h ich cou ld h ave served as in d ep e n d e n t re m an d

groun d); McGrath v. Gober, 14 V et.A pp. 28, 35 (2 000) (advisin g B V A as to h ow to adjudicate rem an ded claim if

certain facts are foun d).

8

See Sachs, Nolen, Campbell, Timberlake, Stone, and McGrath, all supra.

9

2 Vet.App. 252, 254 (1992) (panel decisions constitute "binding precedent" unless overturned by en

banc opinion of this Court or decision of U.S. Court of Appeals for the Federal Circuit (Federal

Circuit) or Supreme Court). Moreover, as support for its assertion that its action is consistent with

"the tradition in . . . appellate practice", the majority cites as persuasive authority cases of the

Seventh, Eight, and Ninth circuits, but fails to reconcile recent precedent of the Federal Circuit,

whose precedent opinions are binding on the Court, rather than merely persuasive, that obviously

does not follow the jurisdictional approach put forth by the majority today.9 See ibid.

B. Undefined Term "Undoubted Error"

Besides failing to address clear precedent to the contrary, a second flaw is the majority's

apparent application of the jurisdictional doctrine of mootness to the consideration of other than "an

undoubted error", and the majority's failure to define that term. Presumably, the majority believes

that a failure to consider the VCAA is "an undoubted error"10 and that the non-VCAA arguments put

forth by the appellant in the instant case are not examples of "undoubted error". (Or is it that the

VCAA error is "undoubted" and the Court lacks jurisdiction to consider the errors asserted by the

appellant here even if they also are "undoubted"?) I question whether there is a principled basis for

such a distinction between the different arguments at issue here, and whether that distinction can

withstand scrutiny in view of the overwhelming weight of precedent addressing more than a single

"undoubted error". I also question whether any such distinction could be evenhandedly applied by

the Court in future cases.

C. Jurisdiction Predicated on Valid Notice of Disagreement

Further, there is the fact that this Court's appellate jurisdiction to review a final BVA decision

timely appealed here, see 38 U.S.C. § 7266(a), is premised not on whether "an undoubted error" has

been identified but rather upon whether a valid Notice of Disagreement (NOD) was filed on or after

November 18, 1988, as to the underlying VA regional office (RO) decision. See Veterans' Judicial

Review Act, Pub. L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251

note); Velez v. West, 11 Vet.App. 148, 157 (1998) ("Court has no jurisdiction over an issue absent

a post-November [17], 1988, NOD, expressing disagreement with a [VA]RO decision on that issue

or with an RO's failure to adjudicate that [issue]"); see also Barrera v. Gober, 122 F.3d 1030, 1031

(Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156, 1157 (Fed. Cir. 1997), rev'g 8 Vet.App. 228

9

See, e.g. Nolen v. Gober, 22 2 F .3d 1356, 1361 (F ed. C ir. 2000) (holding that this C ou rt erred by

prem atu rely con siderin g w ell groun dedn ess, but also n otin g C ourt error as to its con sideration of n on prejudicial-

error rule); Winters v. Gober, 219 F.3d 1375, 1361 (Fed. C ir. 2000) (vacatin g th is C ourt's opin ion for failure to

con sider Hodge v. West, 155 F.3d 1356 (F ed. C ir. 1998), b o th because C ourt "exceeded its statutory auth ority" an d

because C ourt "prejudiced [appellan t] by basin g its decision on a differen t groun d from th at relied on by th e

B oard"); Schroeder v. West, 212 F.3d 1265 (Fed. C ir. 2000) ("[b]ecause th [is C ou rt]'s decision applies an in correct

stan d ard of proof to th e evid en ce p resen ted an d is based on de n ovo fact fin din g by th [is C ourt], it m ust be vacated

an d th e case rem an ded" (em ph asis added)).

10

I am pu zzled as to h ow th e B oard could h ave m ade an "error" by n ot con siderin g a law n ot yet en acted

at the tim e of th e B oard decision , but that is th e least of m y con cern s at this poin t.

10

(1995). Once a valid NOD has been filed as to a particular claim, the Court has jurisdiction over that

claim and the Board is required to follow all of the Court's orders or instructions as to the

adjudication of that claim, see Stegall, supra, unless and until the Court's orders or instructions are

rendered moot because the benefit sought has been awarded to the claimant.

D. VCAA Remand Does Not Render Other Issues Moot

Moreover, in a case such as this one where a claim is remanded pursuant to Karnas, supra,

the issue whether the appellant could be entitled to the benefit sought on appeal under the law as it

existed prior to the enactment of the VCAA is still very much in contention because Karnas requires

consideration of both old and new law, with the ultimate application of the law that is more favorable

to the claimant. Thus, a simple vacatur of a Board denial of a claim and remand for the Board to

consider the VCAA does not render all other issues as to that claim moot; it is certainly not

"absolutely clear that the alleged wrongful behavior [by the Board] could not reasonably be expected

to recur", Buckhannon, supra (internal quotation marks omitted; citation omitted). On the other

hand, if it is the majority's position that once the Court vacates a Board decision based on "an

undoubted error", that Board decision no longer exists and thus the matters raised therein are moot,

I note that the Court is not ultimately divested of its statutory jurisdiction until the Court's mandate

has issued, see U.S. VET . APP . R. 41(b), and when that occurs the Court is divested of jurisdiction

over the entire claim -- including the issue that served as the basis for remand.

Thus, I fail to see how a colorable argument as to a basis for remand could be mooted by

virtue of the Court's having identified "an undoubted error". I can understand why the Court might

not choose to exercise its jurisdiction over such an argument in certain instances, and, as I have said

above, I have less quarrel with the majority's decision as a matter of the exercise of discretion

(although I disagree with it in this particular case, as my earlier discussion in part II makes clear).

However, as indicated above, I believe that any suggestion that the Court lacks jurisdiction to

consider such argument is unsustainable and inconsistent with controlling precedent.

III. Conclusion

For all of the foregoing reasons, I would grant the appellant's motion for a panel decision and

review the colorable allegations of errors that he makes before this Court, so that, if the Court were

to agree with the appellant and find that the Board had made a material error that would if not

corrected likely be prejudicial to the outcome of the appellant's claim on remand, the Secretary could

then ensure that such error or errors would not recur in the subsequent readjudication on remand.

See Stegall, supra.

11