Neumann v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 98-1410

KLAUS P. NEUMANN , APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and FARLEY and HOLDAWAY, Judges.

ORDER

In a panel opinion dated July 21, 2000, Neumann v. West, 14 Vet.App. 12 (2000), the Court

affirmed that part of the July 15, 1998, decision of the Board of Veterans' Appeals (Board) that

denied the appellant's claims to establish service connection for cubital tunnel syndrome, a skin

disorder, and a perception or coordination disorder. Judgment was entered on August 14, 2000. The

appellant subsequently perfected an appeal to the United States Court of Appeals for the Federal

Circuit (Federal Circuit). In an order dated February 20, 2001, the Federal Circuit remanded the

appeal to this Court to consider the application of the recently enacted Veterans Claims Assistance

Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In addition, the Federal

Circuit denied the appellant's motion to vacate this Court's July 2000 opinion with instructions for

this Court to remand his claim to the Board. The Federal Circuit stated that it was more appropriate

for the appellant to request such relief from this Court on remand.

Among other things, the VCAA eliminated the well-grounded-claim requirement and

modified the Secretary's duties to notify and assist claimants. See generally VCAA, §§ 3, 4, 7; see

also Holliday v. Principi, __ Vet.App. __, __, No. 99-1788, slip op. at 6-9 (Feb. 22, 2001) (holding

all sections of VCAA are retroactive). In Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991), this

Court held that where a statute or regulation changes during the appellate process, unless Congress

has provided otherwise, the version most favorable to the claimant shall apply. It is not the function

of this Court to determine in the first instance which version of the law is most favorable to the

claimant. See Baker v. West, 11 Vet.App. 163 (1998); Dudnick v. Brown, 10 Vet.App. 79 (1997).

Thus, a remand is required for the Board to make this determination. Accordingly, the Court will

recall the August 2000 judgment and will withdraw its July 21, 2000, opinion and issue this order

in its stead.

On remand, the appellant is free to submit additional evidence and argument necessary to the

resolution of his claims. Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order).

The Board shall proceed expeditiously. See Veterans' Benefits Improvement Act, Pub. L. No. 103-

446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to

provide for "expeditious treatment" of claims remanded by Board or Court); Drosky v. Brown,

10 Vet.App. 251, 257 (1997).

Upon consideration of the foregoing, it is

ORDERED that the August 14, 2000, judgment is recalled. It is further

ORDERED that the Court's July 21, 2000, opinion is withdrawn. It is further

ORDERED that the July 15, 1998, Board decision is VACATED and the matters are

REMANDED to the Board for readjudication.

DATED: April 2, 2001 PER CURIAM.

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