The opinion
KASOLD, Judge,
separate statement:
I concur that Mr. Johnson was a prevailing party and that the Secretary was not substantially justified during the administrative processing of Mr. Johnson’s claim. In support of that decision, I note that although our precedential caselaw may not have explicitly addressed the full scope of the Secretary’s regulation on extraschedu-lar consideration, a fair reading of our caselaw would have cautioned the Secretary against any attempt to inexplicably ignore the plain wording of his regulation. Not only did Judge Steinberg’s concurrence in Brambley v. Principi proffer an interpretation of the regulation directly contrary to the Secretary’s position, but the majority in that case also implicitly agreed with Judge Steinberg when they stated that extraschedular consideration and TDIU each “require a complete picture of the appellant’s service-connected disabilities and their effect on [ ] employa-bility.” 17 Vet.App. 20, 24 (2003); id. at 26 (Steinberg, J., concurring). Moreover, that view of the Secretary’s regulation was not rejected by the Court until Johnson I, which was reversed by Johnson II. 2
As to the EAJA fees and expenses, although four of my colleagues would award $27,088.65, (while four others would award nothing), I note that the EAJA application *145 requests reimbursement for almost two, ten-hour days, spent on the underlying merits reply brief, which is more hours than requested for the merits brief. Because a reply brief is meant to be a narrow, responsive pleading, the time spent on the reply brief here appears excessive on its face; moreover, Mr. Johnson fails to demonstrate otherwise. See Kiddey v. Shinseki, 22 Vet.App. 367, 373 (2009) (“The appellant has the burden of demonstrating that the fees requested are reasonable.”). Based on the work product and issues discussed, only 10 hours appear reasonable, such that only $25,362.88 is appropriate and therefore it is the amount actually granted by the Court. See 28 U.S.C. § 2412 (permitting the Court to award reasonable attorney fees); see also Marks v. United States, 430 U.S. 188, 193 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977) (“[W]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds (quoting Gregg v. Geor gia, 428 U.S. 153 , 169 n. 15, 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976))).
. I note that our colleagues in disagreement with the determination that the Secretary was not substantially justified during the administrative processing of Mr. Johnson’s claim raise numerous issues—i.e., (1) Johnson I's split en-banc decision suggests reasonableness, (2) a plain language determination is not dispositive, (3) the majority misapplies dicta from Patrick, and (4) the majority relies on one factor (the Johnson II merits determination), which are not specifically addressed in the opinion determining that the Secretary was not substantially justified during the administrative processing of Mr. Johnson’s claim, I further note, however, that these issues were also raised in the dissenting statements, and rebutted by a majority of the Court, in the recently issued decision in Butts v. McDonald, 28 Vet.App. 74 (2016). The rationale stated in Butts for rejecting the dissenting views on these issues is equally applicable in this case,
I further note that our colleagues in disagreement state that regulatory history concerning extraschedular consideration is murky and they support this statement by quoting my separate statement in Johnson I where I stated that a 1930 rule, which the Secretary contended formed the basis for the extraschedular regulation, was unclear. This selective quotation, however, fails to acknowledge the subsequent portions of my Johnson I separate statement explaining how later changes resolved any ambiguity. See Johnson I, 26 Vet.App. at 257-59 (Kasold, C.J., dissenting) (noting that the 1934 regulation, the 1936 VA version of VA Rules and Procedures, a 1945 VA rule, and a 1960 interim regulation all indicated that extraschedular could be premised on multiple disabilities and further explaining that "[b]y 1961 ... any ambiguity present in the earlier VA rules is gone”). Otherwise stated, my separate statement in Johnson I does not support tire proposition that the regulatory history is or was murky. See id. at 259 ("In sum, the regulation’s promulgating history supports the plain language of the regulation that the USB and Director have been delegated broad authority to award an extraschedular disability rating based on the total disability picture of the veteran.").